TaxTMI 
TaxTMI 
2016 (5) TMI 895
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....ected, therefore, the same are being taken up for disposal under this common order. 2. Sh. M. K. Choudhary (Advocate) appearing on behalf of the appellant submitted that appellant paid on amount of Rs, 3,46,820/- twice on 31/1/2011 both in cash as well as through Cenvat Credit account. That on realizing the mistake appellant took suo-moto Credit on 28/2/2011 in the cenvat account for the duty paid through credit account. That the amount for which Suo-moto credit was taken was again paid at the instance of the department on 16/3/2012 when detected by CERA. That vide letter dt 3/5/2012 Appellant was advised by AC, Howrah Central Excise division to file a refund claim under Sec 11B of the Central Excise Act 1944 and a refund claim was filed....
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.... (40) STR 618 (Tri-Del)]. 2.3 That in view of the above case laws the suo-moto credit taken was correct & no penalties could be imposed. That the refund claim was filed within one year from the date of payment of duty on 16/03/2012 at the instance of the department. 3. Sh. A. Roy Supdt (AR) appearing on behalf of the Revenue on the other hand argued that as per the larger bench judgment in the case of BDH Industries Ltd. Vs CCE (Appeals) Mumbai-I [2008 (229) ELT 364 (Tri-LB)] appellant cannot take suo-motu credit of duty paid twice & was required to file a refund claim under Sec 11B of the Central Excise Act 1944 to test the doctrine of unjust enmeshment & time bar. Learned AR made the bench to through Para-12 of the lager bench case ....
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.... "12. We find that there is no provision under Central Excise Act and Rules allowing suo moto taking of credit or refund without sanction by the proper officer. The appellant's contention that refund in respect of duty paid twice cannot be considered as refund of duty and is only the accounting error does not appeal to us as the debit entry made in the accounts is towards payment of duty only and therefore refund of these amounts has to be considered as refund of duty only. The PLA account and the credit accounts are required to be submitted to the department and any correction carried therein, need to have department's sanction. We also note that the law relating to refund has been fully analysed by the Apex Court in the case of Mafat....
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....Guj)]. Following observations were made by the CESTAT DELHI bench while distinguishing BDH Industries Vs CCE (Appeals) Mumbai-I (Supra);- "9. The ld. AR strongly has relied on the decision of Larger Bench in the case of BDH Industries Ltd. (supra) wherein it was held that the suo motu credit is not available but in the case of Motorola India Pvt. Ltd. (supra) the Hon'ble High Court of Karnataka already held that the suo motu credit can be taken in case of duty has been paid twice, which decision was delivered on 19-7-2006 and the said decision was not considered by the Larger Bench of this Tribunal in the BDH Industries Ltd. (Supra) which was delivered on 9-7-2008. Therefore, the decision of Larger Bench is per incuriam to the deci....
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....ng views were expressed by the courts penalty imposed upon the appellant is not justified and is set aside. 5. So for as point at Para- 4 (ii) above is concerned, appellant has argued that they have filed refund claim on 16/3/2012 for which the relevant date will be 16/3/2012, when duty was paid at the instance of the department and not 31/1/2011 when duty was earlier paid twice by the appellant. It is observed from the lager bench judgment BDH Industries Ltd Vs CCE (Appeals) Mumbai-I (Supra) that no point of "relevant date" under Sec 11B of the Central Excise Act 1944 was under consideration or decided by the larger bench. This aspect has been deliberated by CESTAT Ahmedabad in the case of Neptune Industries Ltd Vs CCE Ahmedabad (Supra....
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....9. On being advised by the Range Superintendent, the entries were reversed on 22-5-2009. It has to be noted if the Range Superintendent were to advise the appellant to file a refund claim immediately after reversing the entry, the refund claims would not have been time barred at all. While advising reversal, the remedy available to the appellant by way of filing refund claim could have been intimated in the case of immediately after coming to know that the re-credit was wrong, appellants could have filed a refund claim. However, this would be extending the benefit on the basis of equity. I have already taken a view that the refund claim is not time barred even when the issue is examined legally. Therefore in whatever manner the issue is loo....