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TaxTMI 
TaxTMI 
2017 (7) TMI 278
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....ropriate duty and also cleared the goods to Madhya Pradesh Poorva Kshetriya Vidyut Vitaran Co. Ltd. Jabalpur, without payment of duty by availing the benefit of exemption vide Notification No.108/95-CE, dt. 28.08.1995. Appellant's case is that due to error in the software, clearances effected to Madhya Pradesh Poorva Kshetriya Vidyut Vitaran Co. Ltd. Jabalpur being exempted from Customs Duty, the account got automatically debited by 10% of the amount of the goods cleared. Subsequently, during the internal audit of their company, error was noticed, that they availed suo-moto the re-credit of such amount debited erroneously. A show cause notice dated 16.3.2011 was issued directing the appellants to show cause as to why this availment of C....
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....they had no documents as per rules on which credit can be availed. He would also submit that they should have followed the procedure of refund under the provisions of Section 11-B to claim the amount from the department. He would submit that similar issue of reversal and suo motu credit has been considered by the Tribunal in the case of BDH Industries Ltd. Vs. Commissioner [2008(229) E.L.T 364 (Tribunal-LB) and held that no suo motu credit can be taken. 5. On careful consideration of the submissions by both sides and perusal of records, the issue falls for consideration is whether the appellant was correct in availing suo motu credit of Rs. 30,02,093/- on the ground that it was debited inadvertently or otherwise. Both the lower authoriti....
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....e case of BDH Industries Limited would be applicable in this case, as the identical facts were decided by the Larger Bench but on deeper consideration, I find that the reference to Larger Bench was made by me in the case of BDH Industries Limited, sitting singly, only on the ground that the appellant had taken suo motu credit of excess paid duty by double debit in PLA and the credit was taken in RG 23A Part-II; noticing contrary decisions of Tribunal in the case of Motorola India Pvt. Ltd and Comfit Sanitary Napkins (l) Pvt. Limited. I find that the law as has been decided by the larger Bench seems to be incorrect on the face of the fact that the judgment of the Tribunal in Motorola India. Pvt. Ltd was carried in appeal before the Hon'b....
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.... invoices. In that sense, the amount paid should be considered as deposit and not duty. Therefore, the question of time bar does not arise. In any case, the denial of the refund claim for the excess amount paid on account of clerical error is unjust. In the peculiar facts and circumstances of the case, we allow the appeal with consequential relief. Aggrieved by such an order of the Division Bench of the Tribunal, Revenue preferred appeal before the Hon'ble High Court of Karnataka, wherein their Lordships have passed the following Order:- a) Revenue is before us aggrieved by the Order dated 1.9.2005 passed in appeal No.E/83/2004 by the Customs Excise Service Tax Appellate Tribunal, Bangalore. (b) The respondent....
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....l does not require any interference by us. No question of law arises. The order is based on the law laid down by the Apex Court. 7. I also find strong force in the submissions of Ld. Counsel that suo motto credit of Cenvat can be allowed if there is no dispute as to availment of Cenvat Credit in the first place i.e. original Cenvat Credit is not contested. The judgement of Hon'ble High Court of Karnataka is very clear on the point and the ratio is in paras 6 - 10 which I reproduce: "In this view of the fact, we find that the show cause notice was wrongly issued on a wrong premise that no permission was taken or that original documents were not filed. In fact, we find that the appellant had not only intimated the department about i....