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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 ..... spondent has consistently maintained that such return of the capital goods was made on payment of duty equivalent to the CENVAT credit taken. However, there is no finding by the lower authorities with regard to this claim of the party. Be that as it may, one fact which is not in dispute is that the respondent raised 4 invoices, Nos. 979 to 982 dated 13.02.2007, in respect of the capital goods covered by the aforesaid 6 invoices and paid duty thereon amounting to Rs. 3,35,434/-. Later, on 09.03.2007, they suo motu took credit of an amount equivalent to the duty paid on 13.02.2007. There is no dispute regarding this fact also. 2. In course of time, there was an audit in the respondent's factory by officers of the department. The auditors int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Heard both sides. Learned SDR submits at the outset that it is not clear from the records as to whether any duty was paid by the respondent, whether in cash or by way of reversal of CENVAT credit, when the capital goods were returned to the supplier in April 2006. It is submitted that there is no clear finding in this respect in the order-in-original. Even if it be assumed that the capital goods were returned by the respondent to the supplier on payment of duty, learned SDR submits, their subsequent conduct of taking credit suo motu of the same amount in CENVAT account is not recognized in law notwithstanding their plea of double payment of duty. Learned SDR has, in this connection, claimed strong support from the Tribunal's Larger Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suo motu refund can be taken unless and until the department is satisfied that the incidence of duty has not been passed on. In view of above, we answer the reference made to us by holding that all types of refund 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. The matter is now sent back to the referral bench for passing appropriate orders on the appeal before it." 5.1. According to the learned SDR, instead of taking credit in CENVAT account, the respondent ought to have claimed refund under Section 11B of the Central Excise Act. It is therefore urged that the respondent be directed to pay to the Revenue an amount equivalent to the CENVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes the submissions contained in the 'cross objections' filed by the party. He submits emphatically that the raising of invoice Nos. 979 and 980 dated 13.02.2007 was inadvertent. It is submitted that these invoices were raised along with two other invoice Nos. 981 and 982, oblivious of the absence of capital goods. As soon as the mistake was realized, the respondent took credit of an equivalent amount in their CENVAT account, only to set their accounts straight. In other words, an accounting error was sought to be rectified. In this scenario, at best, the respondent might attract a penalty on the ground of minor technical breach. It cannot be considered as a case of wilful misstatement or suppression of facts with intent to evade payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the capital goods were shown in the above statement as having been received in the factory on 09.03.2007. It is nobody's case that the capital goods were received in the respondent's factory on that date. On the other hand, it is an admitted fact that the capital goods had been returned to the supplier as early as in April 2006. In any case, the observations made by the learned Commissioner (Appeals) with reference to the capital goods column of the ER 1 returns cannot lead to the inference that the respondent did not suppress any fact. It is not in dispute that the respondent received intimation of audit objection and, in their response dated 26.05.2009, they informed the department that they had taken CENVAT credit of Rs. 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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