2016 (8) TMI 236

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....stri, Asstt. Commissioner(A.R.) ORDER PER : RAMESH NAIR This appeal is directed against Order-in- Appeal No. PIII/VM/68/2011 dated 23/3/2011 passed by the Commissioner of Central Excise (Appeals-III), Pune whereby Ld. Commissioner(Appeals) upholding the Order-in-Original No. PVIII/44/Adjn/CEX/10-11 dated 29/10/2010 rejected the appeal. 2. The fact of the case is that appellant is engag....

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....ri. D.H. Nadkarni, Ld. Counsel for the appellant submits that appellant had taken credit on the belief that duty was paid mistakenly which was not suppose to be paid, therefore they have taken suo moto credit during the period involved. There are various judgments available according to which suo moto credit was permitted, some are cited below: (a)Gujarat Alkalies & Chemicals Ltd Vs. Comm....

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....he issue. The Larger Bench decided that suo moto credit is not permissible and only remedy is to file refund claim under Section 11B of Central Excise Act, 1944. He referred the judgment in case of BDH Industries Ltd. Vs. Commissioner of Central Excise, Mumbai[2008(229) ELT 369 (Tri. LB)]. He submits that since there were conflicting views and matter referred to the Larger Bench the extended perio....

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....that the suo moto credit was allowed in respect of any duty paid mistakenly. However, due to conflicting views in some judgments the matter was referred to the Larger Bench and in the case of BDH Industries (supra) the Larger Bench has settled the conflict by holding that suo moto credit cannot be allowed and if at all any excess payment, remedy is to file refund claim under Section 11B, therefore....