AI Drafter 
TaxTMI 
TaxTMI 
2017 (3) TMI 719
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....of Rs. 16,60,225 under rule 57U of Central Excise Rules, 1944 and imposed penalty of Rs. 2,00,000 under rule 175Q (i)(bb) of Central Excise Rules, 1944 leading to this appeal. 3. The credit was availed in relation to goods that are claimed to be capital in nature. The primary contention of appellant is that they had not been placed on notice for denial of their claim that these were capital goods. It is their submission that, without challenge to eligibility for credit, the availment of credit cannot be disallowed. 4. We have heard both Learned Counsel for appellant and the Learned Authorised Representative. Reliance was placed by the latter on decision of the Tribunal in Commissioner of Central Excise, Belgaum v. Comfit Sanitary Napkins (I) Pvt Ltd [2004 (174) ELT 220 (Tri-Bang)] which held that conversion of excess payment of duty into credit without following refund procedure is not in accordance with law. It is his contention that assessment in RT-12 should have been challenged by appeal and, having failed to do so, suo motu availment of credit is not proper or legal; reliance was placed on Voltas Ltd v. Commissioner of Central Excise, Nagpur [2002 (149) ELT 1047 (Tri-Mum....
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....stinguishable from the facts of the present case. In the result, we uphold the impugned order and dismiss the appeal.' this was sought to be reinforced. Learned Authorized Representative asserted that there is no provision for re-credit of reversed credit. 5. Learned Counsel contends that remarks noted while assessing returns is not sufficient to erase the credit taken; according to him, such reversal is legal only when consequent upon issue of notice and adjudication order. Reliance was placed on the decision of the Tribunal in Collector of Central Excise v. Indian Iron and Steel Co [1989 (39) ELT 617 (Tribunal)], Super Urethane Products (P) Ltd v. Collector of Central Excise [1990 (48) ELT 310 (Tribunal)] and of the Hon'ble Supreme Court in Collector of Central Excise, Baroda v. Kosan Metal Products Ltd [1988 (38) ELT 573 (SC)]. 6. Having perused the rival submissions, we come to the conclusion that, in the absence of notice and without a formal order to disallow credit, mere observations in assessment of returns do not suffice to debar an assesse from availment of credit. This is amply clear in the decision in re Kosan Metal Products Ltd. '3. The main question that w....
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....oods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (ii) "relevant date" means, - (a) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid - (A) Where under the rules made under this Act a monthly return, showing particulars of the duty paid on the excisable goods removed during the month to which the said return relates, is to be filed by a manufacturer or producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed: (B) Where no monthly return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) In any other case, the date on which the duty is to be paid under this Act or the rules made thereunder; (b) in case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund." The said section provides that when any d....
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....take. The department however advised him to file a refund claim. The appellant however contended that the amount erroneously debited was not duty. A refund claim was filed after a year which was rejected by Asst. Commissioner on the grounds of time bar. The Tribunal expressed a view that the amount deposited cannot be considered as duty, as duty paid on the goods has to be indicated on their invoices. As the amount erroneously paid in excess does not find mention in any invoices, in that sense it should be considered as deposit and not duty and accordingly the question of time bar, does not arise. In the case of Comfit Napkins It was held that the assessee cannot suo moto take credit without applying for refund when excess duty has been paid.' held that '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....