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2019 (4) TMI 1344 - AT - Central ExciseSuo moto credit of excess duty paid or refund claim - the only ground of Revenue is that in view of the ruling of Larger Bench in the case of BDH INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX. (APPEALS), MUMBAI-I 2008 (7) TMI 78 - CESTAT MUMBAI wherein this Tribunal held that all types of refunds have to be filed under Central Excise Act and Rules made thereunder and no suo-motu credit of the duty paid in excess may be taken by the assessee. HELD THAT - The Larger Bench had taken the view with regard to the provisions of unjust enrichment. Whereas in the present case, there is no such dispute of unjust enrichment as the appellant was allowed rebate after taking in to consideration the element of unjust enrichment. Accordingly, the facts herein are different and the ruling in the case of BDH Industries of Larger Bench of this Tribunal is not attracted. The matter relates to rectification of mistake, both on the part of the assessee as well as the Department. Thus rectification has to be carried out in full - By sitting tight on the repeated request of the assessee to take back the Cenvat Credit was unjust and unfair under the facts and circumstances. The SCN is misconceived and an abuse of the provisions of the scheme of the Central Excise Act and the Rules - Appeal dismissed - decided against Revenue.
Issues Involved:
1. Whether the respondent company was entitled to take suo-motu credit of ?13,18,771/-. 2. Whether the extended period of limitation was applicable for the demand of erroneous rebate. 3. Whether penalties imposed on the respondent company and its Director were justified. Detailed Analysis: 1. Entitlement to Suo-Motu Credit: The respondent company, a manufacturer of automobile tyres, mistakenly paid duty on goods from its Baddi unit (which enjoyed area-based exemption) when exporting tyres. Upon realizing the error, the company paid back the erroneously claimed rebate along with interest and sought to take suo-motu credit of the duty paid. The company informed the Revenue multiple times but received no response, leading them to take the credit unilaterally. The Revenue objected and issued a show cause notice demanding the return of the credit taken and proposing penalties. The Commissioner (Appeals) observed that the company had complied with the department's directives by depositing the erroneous rebate amount and paying interest. The Commissioner noted that the company’s actions were in line with the principle that if duty is paid by mistake, the assessee is entitled to a refund or credit. The Commissioner cited several cases, including CEAT Ltd. and Belapur Sugar & Allied Ind. Ltd., supporting the view that the company was entitled to the credit. 2. Extended Period of Limitation: The Commissioner (Appeals) found that the demand issued on 19 March 2012 for the rebate amount already deposited on 13 August 2010 was unjustified and unsustainable. The extended period of limitation was not applicable as there was no suppression of facts; the company had informed the department about the erroneous rebate and had paid it back along with interest. The Commissioner referenced Section 11A(2) of the Central Excise Act, 1944, and Circular No. 423/56/98-CX, which prescribe that demands for recovery of erroneous refunds must be made within the prescribed limitation period. 3. Penalties on the Company and its Director: The Commissioner (Appeals) set aside the penalties imposed on the company and its Director, stating that the demands were not sustainable. The penalties were deemed unjustified as the company had already rectified the mistake by paying back the erroneous rebate and interest. Tribunal's Judgment: The Tribunal upheld the Commissioner (Appeals)'s order, dismissing the Revenue's appeals. The Tribunal noted that the facts of the case did not attract the ruling in BDH Industries Ltd. vs. CCE, as there was no issue of unjust enrichment. The Tribunal emphasized that the matter was a rectification of a mutual mistake by both the assessee and the department. The Tribunal found that the show cause notice was misconceived and an abuse of the provisions of the Central Excise Act and Rules. Consequently, the Tribunal upheld the entitlement of the company to take suo-motu credit and dismissed the appeals filed by the Revenue.
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