TaxTMI 
TaxTMI 
2019 (4) TMI 1344
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....s. For the purpose of export some tyres were brought from their Baddi unit to the Delhi unit for stuffing the container for export under rebate. Mistakenly as the export consignment included goods both of Baddi unit as well as the Ghaziabad unit, duty was paid on entire export including the goods brought in from the Baddi unit. The container stuffing was done under Central Excise supervision. In normal course rebate claim was filed and was granted by the Assistant Commissioner under various adjudication orders relating to the period 2008 - 09 to 2010 - 11. The last of such rebate was granted on 7 December, 2010. Subsequently Revenue could know from the documents on record that the appellant have wrongly paid duty on the goods originating from Baddi unit and claimed rebate. Accordingly, it appeared to Revenue that appellant have wrongly claimed rebate with respect to the goods of Baddi unit and on being so objected to by Revenue, vide their letter dated 13 August, 2010, addressed to the Superintendent at Ghaziabad, furnished the details of tyres received from their Baddi unit intimating that they are ready to pay back the duty which was claimed erroneously, further praying to allow ....
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....L. Dhawan. 5. Being aggrieved the appellant preferred appeal before learned Commissioner (Appeals) who vide the impugned order have recorded the following findings: - "I have carefully gone through the facts on record as well as the submissions made by the appellants in the grounds of appeal. Taking into account the overall facts of the case, I take up the matter for final disposal after dispensing with the condition of pre-deposit under Section 35F of the Central Excise Act, 1944. I observed that in the instant case the bone of contention arose when it came to the notice of the department that the appellants had been granted rebate erroneously in respect of the goods i.e., Tyres exported on payment of duty whereas, some of the goods exported were exempted under the area based exemption notification. I find that the department had sanctioned the rebate claim earlier finding it to be admissible and when it was noticed that the same was erroneously granted, the department pointed it out to the appellants on 16.07.2010. The appellants themselves worked out the erroneous rebate claim so allowed by the department and deposited the same in cash on 13.08.2010 and also requested for....
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.... (220) ELT 226 (Tri.-Mumbai)} wherein it has been held that, 'timely demands should be invariably raised (within six months normal period) under Section 11A of the Act in cases of refunds. It is settled law that the departmental officers cannot argue against the CBE&C Circular.' Therefore, I find the demand for already deposited erroneous rebate amount, invoking extended period of limitation as unsustainable. The second issue to be decided is that of suo-motu credit taken by the appellants. The adjudicating authority has relied upon the Larger Bench decisions in the case of BDH Industries vs. CCE Mumbai {2008 (231) ELT 61 (Tri.-Mum)}. The said decision was considered by the Tribunal in the case of Ultra Tech Cement Ltd. reported in 2010 (261) ELT 0696 (Tri.) and it was observed that the same is not applicable to identical facts and circumstances inasmuch as facts of the case before Larger Bench were different. In the case of CEAT Ltd. {2010 (254) ELT 0349 (Tri.)}, it has been held that the assessee becomes automatically entitled to credit utilized for payment of duty on realizing that such utilization was incorrect and when the duty was subsequently paid through PLA. In the case....
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....i. - Del.)} has held that -"It is seen that the appellants have raised categorical defence/plea before the original adjudicating authority for grant of recredit, in case of duty is confirmed against them. Two issues are closely linked. If the appellant is not contesting the confirmation of demand, consequent readjustment in Cenvat credit flows out of the same. If the original adjudicating authority inspite of appellants having made a request to that effect, has not considered the said plea, and has not passed any orders on the same, the Commissioner (Appeals) should have considered and passed the orders instead of rejecting the appeal on the ground that original adjudicating authority has not considered the said issue. Non-consideration of any issue raised before the original adjudicating authority reflects upon casual attitude of the adjudicating authority which is required to be mended at the appellate stage rather than endorsing the same." Thus, I find that dispute about the rebate of the amount in question stands settled as the appellants have already deposited the said erroneous amount of refund in cash, there is no reason to deny the re-credit. It is also seen that the app....