2008 (8) TMI 337 - AT - Central Excise

Refund of Cenvat credit excess amount of duty paid - They paid total excise duty of Rs. 3,03,188/- instead of Rs. 1,51,413/-. They paid excess amount of Rs. 1,51,775.00. It has informed that they received the rebate claim of Rs. 1,51,413/- vide Order No. 34/2004-05 dated 9-6-2004 and the balance excise duty is still pending. Thereafter, the Appellant suo motu took the credit of the said amount in their Cenvat Account on 27-12-2004 held that - Larger Bench of the Tribunal observed that no suo motu refund can be taken unless and until the Department is satisfied that the incidence of duty has not been passed on - In any event, the Appellant applied for availment of Credit by letter dated 11-11-2004. Whether it will be treated as a refund claim or not, will be decided by the Adjudicating Authority. Matter remanded back to adjudicating authority.

Summary

Issues:
1. Availment of suo motu credit of excise duty paid in excess.
2. Interpretation of the decision by the Larger Bench regarding refund claims under Central Excise Act.
3. Disallowance of credit by Adjudicating Authority and Commissioner (Appeals).
4. Factual dispute of availment of credit and doctrine of unjust enrichment.

Analysis:
1. The case involved the Appellant informing the Asstt. Commissioner of Central Excise about exporting goods with an incorrect excise duty rate, resulting in an excess payment of Rs. 1,51,775.00. The Appellant took suo motu credit of this amount in their Cenvat Account, leading to a show cause notice disallowing the credit, with interest and penalty imposed under Section 11AC of the Act.

2. The Tribunal referred to a decision by the Larger Bench in the case of BDH Industries Ltd. v. CCE (Appeals) Mumbai, emphasizing that no suo motu credit of duty paid in excess should be taken without proper officer sanction. The Tribunal highlighted the need for all refund claims to be filed under the Central Excise Act and Rules, with a requirement to prove non-passing of duty incidence. The doctrine of unjust enrichment was stressed, indicating that all refunds must pass through this principle.

3. The Commissioner (Appeals) upheld the disallowance of credit, prompting the Tribunal to analyze the factual dispute regarding the Appellant's credit availment. The Tribunal noted that the Appellant's letter informing about the excess duty payment could be considered a refund claim, subject to the Adjudicating Authority's decision. The issue of whether the Appellant was entitled to suo motu credit was a key point of contention.

4. Ultimately, the Tribunal set aside the impugned order and remanded the matter to the Adjudicating Authority for a fresh decision in line with the Larger Bench's ruling and the Appellant's letter. The decision highlighted the importance of following legal procedures and satisfying the doctrine of unjust enrichment before availing any credit or refund claims under the Central Excise Act.