2005 (10) TMI 131 - AT - Central Excise

Summary

Issues:
1. Appellants took credit of excess duty paid.
2. Dispute over taking credit without filing refund claim under Section 11B.
3. Applicability of SRP procedure for taking credit.
4. Comparison with relevant case laws.
5. Question of unjust enrichment.

Analysis:
The appeal was against the Order-in-Appeal where it was held that the appellants were wrong in taking credit for the excess duty paid by them. The appellants, manufacturers of Iron and Steel castings, cleared goods in March 1997 at 20% duty, which was later reduced to 18%. The appellants noticed the error and took credit on their own, leading to a show cause notice. The adjudicating authority confirmed the duty and imposed a penalty for not following the refund claim procedure under Section 11B, a decision upheld by the Commissioner (Appeals).

The appellants argued that under the SRP procedure, they could take credit for excess duty paid similar to how they could pay duty if short-paid. They contended that they corrected the error within the same month and informed the authorities accordingly. They presented a Chartered Accountant's certificate to prove no unjust enrichment, citing relevant case laws like Tide Water Oil Company and Flex Industries Ltd. where similar issues were decided in favor of the assessee.

On the other hand, the Department argued that the appellants should have followed the refund procedure under Section 11B instead of availing suo motu credit for excess duty paid. They referred to the Pharma Impex Laboratories case to support their stance. After considering both sides' submissions and reviewing the records, the Member found merit in the appellant's argument. The Member highlighted that correcting the error before the end of the month and reflecting it in the monthly Return RT-12 was acceptable. Citing the Tide Water Oil Company case, the Member concluded that taking credit for excess duty paid with a simple intimation to the Superintendent of Central Excise was permissible under the SRP system.

Moreover, the Member noted the absence of unjust enrichment as evidenced by the Chartered Accountant's certificate and the customer's confirmation of not paying or availing credit in excess of 18% duty. Consequently, the Member set aside the Commissioner (Appeals) order, allowing the appeal.