2007 (2) TMI 70 - AT - Central Excise

Refund Alleged that appellant availed modvat credit without having any proper duty paying documents and accordingly demand for duty alongwith penalty Learned DR find the allegation right and duty and penalty sustaind

Summary

Issues:
1. Appellants erroneously debited duty in Modvat account in September 1997.
2. Availing Modvat credit without proper duty paying documents.
3. Dispute over recrediting erroneous duty payment.
4. Applicability of case laws Indo-American Electricals Ltd. and Hind Spinners.
5. Claiming refund under Section 11B of the Central Excise Act, 1944.

Analysis:

Issue 1: The appellants mistakenly debited duty in the Modvat account in September 1997, which was rectified by paying duty in PLA and re-crediting the Modvat account in March 1998. The department did not dispute this fact.

Issue 2: A show cause notice was issued for availing Modvat credit without proper duty paying documents, leading to the confirmation of demand and imposition of a penalty by the adjudicating authority, which was upheld by the Commissioner (Appeals).

Issue 3: The advocate for the appellants argued that the recrediting was a mere correction of an erroneous entry in the Modvat account and not a refund of duty. The department did not contest this assertion.

Issue 4: The case laws cited by the advocate, Indo-American Electricals Ltd. and Hind Spinners, were examined. However, the tribunal found them inapplicable to the current situation due to differences in the nature of the transactions involved.

Issue 5: Upon reviewing the records, it was determined that the appellants had erroneously paid duty in September 1997 under Section 3 of the Central Excise Act, 1944. As a result, they were eligible to claim a refund under Section 11B of the Act, rather than recrediting the amount in the Modvat account.

In conclusion, the tribunal rejected the appeal, agreeing with the Commissioner (Appeals) that the appellants should have pursued a refund under Section 11B of the Act for the erroneous duty payment in September 1997. The judgment was pronounced on 27-2-07.