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TMI Blog2011 (10) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... Order per : P.R. Chandrasekharan, Member (T)]. This appeal is directed against the order-in-appeal No. PI/VSK/221/2009 dated 6-10-2009 passed by Commissioner of Central Excise (Appeals), Pune. 2. The facts arising for consideration in this case are as follows: 2.1 The appellant, M/s. Vighnahar SSK Ltd., Pune, are manufacturers of excisable goods falling under Chapter Nos. 17 22 of the Schedule to the CETA, 1985. The appellant paid an amount of Rs. 5,48,144/- vide Cenvat Entry No. 5 dated 21-1-2006 towards differential duty liability on account of additional duty in respect of sugar cleared during the period from 1-3-2005 to 12-5-2005. They had discharged additional excise duty liability @ Rs. 21/- per quintal and they were suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd recovered under Section 11AB and why penalty should not be imposed on them under Rule 15 of the Cenvat Credit Rules. The case was adjudicated by the Additional Commissioner, who vide order dated 31-3-2009 dropped the proceedings initiated against the appellant on the ground that the assessee was entitled for the credit of Rs. 5,48,144/-, which they had wrongly debited due to wrong advice given by the excise officers. The department preferred an appeal against the said order before the Commissioner (Appeals). 2.3 The ld. Commissioner (Appeals) observed that in view of the Larger Bench s decision in the case of BDH Industries Ltd. - 2008 (229) E.L.T. 364 any correction in the PLA or Cenvat Credit account needed to have departmental sanct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment of Hon ble High Court of Bombay in CEAT Ltd. v. UOI, reported in 2010 (250) E.L.T. 200 (Bom.). In the light of these submissions, he prays for setting aside the lower appellate authority s order and restoring the order passed by the adjudicating authority. 4. The ld. AR appearing for the department submits that in the BDH Industries Ltd. v. C.C., Mumbai reported in 2008 (229) E.L.T. 364 (Tri. - LB), the Larger Bench of this Tribunal held that there is no provision under the Central Excise Act, 1944 and Rules made thereunder allowing suo motu taking of credit or refund without sanction by the proper officer. In view of the Larger Bench decision the appellant could not have taken suo motu re-credit of the duty wrongly paid and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional duty liability by debit in the Cenvat Credit account on 21-1-2006 though on the wrong advice of the departmental officers. The said mistake was noticed by the assessee only in May, 2007, after a lapse of more than one year and the assessee sought permission of the department to take suo motu credit. The jurisdictional range superintendent informed the assessee that they cannot take suo motu credit and proper sanction from the competent authority has to be obtained. In spite of such advice, the appellant chose to ignore the same and took suo motu Credit on 18-6-2007. The appellant did not file any refund claim and even if they had filed one in May or June 2007, the said claim would have been rejected as time-barred. When a properly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for in the statute. From these decisions it clearly emerges that all types of refund have to be filed under Section 11B of the Central Excise Act and no suo motu refund can be taken unless and until the department is satisfied that the incidence of duty has not been passed on. 13. 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. 8. This decision of the Tribunal is based on the decision of the Apex Court in the Mafatlal Industries case reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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