2017 (12) TMI 1153

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....7,56,363/-. The respondents had agreed to reverse the said excess credit but instead of reversing the said credit they took the same once more on 08.10.2009 resulting in excess cenvat credit amount of Rs. 35,12,729/-. The respondents claimed that the said wrong availment was clerical error. He pointed that the respondents have reversed part of the said amount during the period 30.04.2015 to 11.06.2016. He pointed that the Commissioner (Appeals) has allowed setting off duty wrongly paid on exempted goods. He argued that in terms of decision of the Larger Bench in BDH Industries Ltd. - 2008 (229) ELT 364 (Tri-LB) such adjustment is not permissible. He pointed that in such cases respondents should have filed a refund claim which should have be....

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....dents is fully justified. 7. The Commissioner (Appeals) has set aside the penalty on the Managing Director of the respondents firm holding that what happened was a clerical mistake and the Managing Director cannot be held responsible. The Order-in-Original points out that the Managing Director had by his statement dated 21.01.2014 stated that ER1 return filed by them indicate that certain amount was reversed in October 2009 on account of wrong credit taken a year back. The said statement was incorrect, and thus his involvement cannot be ruled out. Penalty imposed under Rule 26 (2)(ii) of Central Excise Rules read with Cenvat Credit Rules 2004 is therefore correctly imposed in the Order-in-Original. 8. Adjustment of duty excess paid ha....

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....r in the statute. From these decisions it clearly emerges that all types of refund have to be filed under Section 11B of the Central Excise Act and no suo moto refund can be taken unless and until the department is satisfied that the incidence of duty has not been passed on. 9. Moreover, it is seen that the Commissioner (Appeals) has examined the issue of unjust enrichment but the issue of limitation has not been examined while allowing the adjustment of said excess duty paid. Prima facie the said amount of duty excess paid was clearly barred by limitation. It is seen that the Commissioner (Appeals) has held that there is no unjust enrichment as the respondents have not collected the duty from the clients. It is seen that at the material....