TaxTMI 
TaxTMI 
2019 (6) TMI 870
X X X X Extracts X X X X
X X X X Extracts X X X X
....stated the facts of the case are that the appellant is a coal washery plant of Bharat Coking Coal Ltd. (BCCL) which is engaged in washing of the duty paid raw coal received from other coal producing areas/units of the company. Central Excise duty on coal was introduced for the first time w.e.f. 1st March, 2011. Prior to the said date, coal was subjected to 'NIL' rate of Central Excise duty. Even though the activity of washing of coal did not amount to manufacture, the appellant due to lack of knowledge started paying duty on washed coal w.e.f. 01.03.2011. In respect of supply of washed coal in some cases, the final price got reduced after determination of ash content as per the supply contracts with the buyers. Although the appellant did no....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... out to the Audit Report no. 64/ST/BOK/RAN/2013-14 (issued under C. no. III (10-G) 19/EA- 2000/CEX/BOK/RAN-13-14/2794 duly signed by Asst. Comm. Audit, Ranchi HQRS), wherein the objection raised by Audit team with respect to self adjustment of duty against the excess deposits of Rs. 25,66,839/- for the period 2012-13 was specifically dropped in the Monitoring Committee Meeting (MCM) of the audit department. The aforesaid letter dated 4th March, 2014 along with the Audit Report is annexed at Page no. 57 to 62 of the Appeal Paper Book. He also pointed out to the deposition made by the appellant in summon proceedings in para 9 wherein the fact of aforesaid audit para having been dropped was duly submitted. (also reproduced in the impugned SCN ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ved that the amount paid in excess, cannot be treated as duty and it was held that the assessee can avail suo-moto credit of such excess duty paid. He submitted that the decision of Hon'ble Larger Bench cannot be relied upon and the very basis of the impugned OIA is incorrect and thus liable to be set aside. In support of his contention, he relied on the decisions of this Tribunal in Sopariwala Exports Pvt. Ltd. v. Commissioner of C.Ex.,Vadodara-I [2017 (49) S.T.R. 195 (Tri-Ahmd.) and Pushp Enterprises v. Commissioner of Central Excise, Jaipur-I [2015 (322) E.L.T. 728 (Tri. - Del.)], wherein it has been held that the decision in the case of BDH Industries Ltd [Supra] cannot be relied upon in view of the fact that the judgment of the Hon'ble....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as filed stating the duty payment of Rs. 1,09,94,313/- which was revised showing the payment of Rs. 1,04,54,696/- being the correct net duty liability. The SCN has not stated any concrete basis to allege short duty payment whereas, the appellant has duly filed the returns (original and revised) and the relevant details were always available with the department and therefore, the extended period of limitation cannot be invoked. He further stated that the Ld. Commissioner (Appeals) erred in observing that that there was no legal provision allowing the appellant to file revised return. The Ld. Commissioner (Appeals) failed to appreciate that even if there is no specific provision to file the revised return, the assessee cannot be left rudderle....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y introduced w.e.f. March 2011, which was legally not payable, the demand per se is not sustainable. 6. The Ld. DR submitted that the appellant is not legally entitled to suomotu adjust the excess amount of duty in view of the Larger Bench decision of BDH Industries (Supra) as has been correctly relied by the Ld. Commissioner (Appeals) in the impugned order. He stated that the proper course of action would have been to apply for refund inasmuch as the appellant did not seek permission for provisional assessment under Rule 7 of the Central Excise Rules. Moreover, he submitted that once the ER-1 return has been filed by stating the duty amount of Rs. 1,09,94,313 for the month of February 2012, the assessee could not subsequently reduce the d....