2011 (8) TMI 638 - AT - Central Excise

Suo motu credit availed as it was paid twice - Held That - In view of BDH Industries Ltd. vs. CCE (2008 -TMI - 30889 - CESTAT MUMBAI) There is no provision under the Central Excise Act or Rules for taking self credit of duty paid. The only provision is Section 11B of the Act seeking refund of duty paid, thus manufacturer was not entitled to credit.

Summary

Issues Involved:
1. Application for waiver of pre-deposit of duty, interest, and penalty.
2. Denial of suo motu credit availed by the applicant.
3. Interpretation of provisions under the Central Excise Act regarding self-credit of duty paid.
4. Reliance on the Larger Bench decision in the case of BDH Industries Ltd.
5. Dismissal of appeal by Commissioner (Appeals) for non-compliance with Section 35F of the Central Excise Act.

Analysis:
1. The applicant sought waiver of duty, interest, and penalty totaling Rs.22,33,880/- and Rs.2,000/- respectively. The demand arose due to the denial of suo motu credit by the applicant. The Revenue contended that self-credit of duty paid is not provided for under the Central Excise Act, citing the decision of the Larger Bench in BDH Industries Ltd. vs. CCE, Mumbai-I.

2. The Tribunal observed that the applicant had paid duty for which suo motu credit was taken, emphasizing that the Act does not allow for self-credit of duty paid. The Tribunal referenced the Larger Bench decision, which concluded that manufacturers are not entitled to take suo motu credit. Consequently, the Tribunal held that the applicant failed to establish grounds for waiving the demanded duty.

3. In light of the Larger Bench decision, the Tribunal directed the applicant to deposit the demanded amount within eight weeks. Upon deposit, the pre-deposit of interest and penalty was waived for the appeal hearing. Additionally, the Tribunal noted that the Commissioner (Appeals) dismissed the appeal without delving into its merits due to non-compliance with Section 35F of the Central Excise Act.

4. The Tribunal set aside the Commissioner's order and remanded the matter for a merit-based decision after the deposit was made. The appeal was disposed of through remand, allowing for a fresh consideration of the case by the Commissioner (Appeals) with the opportunity for the appellant to present their case.

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