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TMI Blog2011 (9) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... ether by way of debit in CENVAT account or otherwise, in April 2006. However, it is not in dispute that statutory invoices were raised on 13.02.2007 for payment of duty on the capital goods without clearance of the goods or following the Central Excise procedure. Almost soon after the raising of these invoices, the respondent took suo motu credit of an equivalent amount in their CENVAT account. This conduct of the party would suggest that the raising of the invoices on 13.02.2007 was consciously done as preparatory to suo motu credit. - order-in-original does not disclose any clear finding Case remanded back. X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that they had taken CENVAT credit of Rs. 3,35,434/- in RG23C Part II on 09.03.2007 against their invoices Sl. Nos. 979 to 982 dated 13.02.2007 and that subsequently they had reversed the credit taken on invoices 981 and 982 with interest thereon. 3. The show-cause notice in question was issued to the respondent on 01.10.2009 for recovery of Rs. 3,28,685/- which was alleged to have been irregularly taken as CENVAT credit on invoice Nos. 979 to 980 dated 13.02.2007. The show-cause notice also proposed penalty on the respondent. The extended period of limitation was invoked by alleging that the respondent had suppressed the suo motu availment of the above CENVAT credit. The demand of duty was contested by the party. The adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty paid twice cannot be considered as refund of duty and is only the accounting error does not appeal to us as the debit entry made in the accounts is towards payment of duty only and therefore refund of these amounts has to be considered as refund of duty only. The PLA account and the credit accounts are required to be submitted to the department and any correction carried therein, need to have department's sanction. We also note that the law relating to refund has been fully analysed by the Apex Court in the case of Mafatlal Industries which makes it very clear that all types of refund claim be there of excess duty paid or otherwise are to be filed under Section 11B and have to pass the proof of not passing on the incidence of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. Learned SDR submits that the ER 1 returns filed by the respondent also did not disclose the relevant fact. In this connection, he has invited my attention to the return filed for the month of March 2007. It is submitted that though, in the tabulated statement relating to capital goods for the month of March 2007, invoice Nos. 979 and 980 dated 13.02.2007 were mentioned and the particulars of value and duty were also given, the crucial fact relating to physical receipt of the capital goods was misrepresented. It is submitted that the capital goods mentioned in the said invoice Nos. 979 and 980 were shown as having been received in the factory on 09.03.2007. These particulars mentioned in the returns were not disbelieved by the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by way of debit in CENVAT account or otherwise, in April 2006. However, it is not in dispute that statutory invoices were raised on 13.02.2007 for payment of duty on the capital goods without clearance of the goods or following the Central Excise procedure. Almost soon after the raising of these invoices, the respondent took suo motu credit of an equivalent amount in their CENVAT account. This conduct of the party would suggest that the raising of the invoices on 13.02.2007 was consciously done as preparatory to suo motu credit. The plea of inadvertence, therefore, appears to be bereft of bonafides. The only issue considered by the lower appellate authority is limitation. It has been held that there is no suppression of facts in this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal succeeds on this issue. 8. However, on merits, the original authority should reconsider the case. The claim of the respondent is that they returned the capital goods to the supplier in April 2006 on payment of duty. The order-in-original in this case does not disclose any clear finding on this aspect. Whether the capital goods were returned on payment of duty is a question having a definite bearing on the substantive issue. If the clearance was made on payment of duty, then the cash payment made under the invoices on 13.02.2007 is a double payment. In case of double payment, the normal remedy is refund under Section 11B of the Act. If, on the other hand, the clearance of capital goods by the respondent to the supplier was without payme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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