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TMI Blog2011 (9) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority in the impugned order upholding the recovery of the suo motu refund taken is correct in law and has to be sustained Regarding penalty - there was no suppression or wilful misstatement of facts on the part of the appellant to evade any duty or claim any ineligible refund. It is a fact that the appellant was eligible for refund in terms of the order-in-appeal dated 30-3-2007, which the department did not grant - There is no mala fide on the part of the appellant and, therefore, imposition of equivalent amount of penalty under Section 11AC read with Rule 25 of tine Central Excise Rules, 2002 is not warranted and, accordingly, I set aside the penalty imposed on the appellant by the lower appellate authority - Decided agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a period during hearing of the appeal . 2.1 Since sufficient opportunities have already been granted earlier and the present request for adjournment is for the 5th time, I am not inclined to consider any further adjournment in the matter and proceed to consider the appeal on the basis of the submissions made in the appeal memorandum. 3. The present appeal is directed against the order-in-appeal No. SR/143/NGP/2009, dated 16-6-2009 passed by C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilized the said amount for payment of duty on excisable goods manufactured and cleared by them, during the month of May, 2007. They also informed the department that they have taken credit of Rs. 2,29,649/- in their PLA account vide letter, dated 25-4-2007. The department was of the view that the appellant is not entitled for any suo motu credit and, therefore, a show-cause notice dated 23-4-2008 was issued to the appellant asking them as to why the goods cleared in May 2007 utilising the suo motu credit taken should not be treated as goods removed without payment of duty and Central Excise duty amounting to Rs. 2,29,649/- should not be demanded and recovered under Section 11A(1) of the Central Excise Act, 1944 and interest thereon under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication for refund as law does not envisage filing of a fresh application once the refund was sanctioned by the appellate authority. Appellant also relied on the judgment of the Tribunal in the case of Narmada Paints v. CCE, Vadodara reported in 2004 (169) E.L.T. 88 (Tri.-Mum). They have also claimed interest on the delayed refund in terms of the provisions of Section 11BB of the Central Excise Act, 1944 and relies on the judgment of the Tribunal in the case of CCE, Ahmedabad v. Olympic Synthetics reported in 2009 (236) E.L.T. 526 (Tri.-Ahmd). 6. The ld. DR appearing for the department submits that in view of the judgment of the Tribunal in the case of BDH Industries Ltd. v. CCE, Mumbai reported in 2008 (229) E.L.T. 364 (Tri.-LB) all typ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the department did not grant. The CBEC has issued instructions to the field formations to the effect that when a refund becomes due in terms of the order of the Commissioner (Appeals) or other higher appellate authorities such refund should be granted suo motu by the department without waiting for any application from the assessee. In the instant case that has not been done. Therefore, the appellant took suo motu credit, though the same is not permissible under law. There is no mala fide on the part of the appellant and, therefore, imposition of equivalent amount of penalty under Section 11AC read with Rule 25 of tine Central Excise Rules, 2002 is not warranted and, accordingly, I set aside the penalty imposed on the appellant by the low ..... X X X X Extracts X X X X X X X X Extracts X X X X
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