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TMI Blog2012 (7) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing exemption under Notification No. 108/95-CE Dated-28/08/1995. Since common inputs were used in the manufacture of said finished goods which were cleared without payment of duty by availing exemption Notification No. 108/95, the appellant had paid 10% of the price of the said goods totally amounting to Rs.4,79,837/- including education cess and higher secondary education cess from time to time as and when clearances are made from the factory. Later, on realization that the clearances made by them by availing exemption Notification No. 108 of 95 were covered under clause (iv) of Sub-Rule (6) of Rule 6 of Cenvat Credit Rules, 2004 they have taken suo motu credit of Rs.4,79,837/- on 15/11/07 in their PLA Account against entry No. 57/29. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Central Excise Act, 1944 and the rules made thereunder. In this regard he has referred to the judgments of the Tribunal in the case of CCE, Pune-II vs. S.B. Reshellers Pvt.Ltd.-2006 (200) ELT 440 (Tri.-Mumbai), M/s. Birla Copper Vs.Commr. of Customs & Central Excise, Vadodara- ELT 2005 (191) ELT 239 (Tri.-Mumbai), Karnataka High Court judgment in the case of Commr. of Central Excise (Appeals), Bangalore Vs. KVR Construction-2012 (26)S.T.R. 195 (Kar.). The Ld. Consultant has also contested the penalty imposed by the Ld. Commr. (Apepals). He has submitted that the Ld. Commr. (Appeals) has exceeded his jurisdiction by not issuing requisite notice before imposition of penalty and also failed to specify under what provisions penalty ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d unilaterally taken suo motu credit. I find that the issue has been settled by the Larger Bench of this Tribunal in BDH Industries case (supra). The Tribunal at para 12 of the said judgment observed as follows: 12. We find that there is no provision under Central Excise Act and Rules allowing suo moto taking of credit or refund without sanction by the proper officer. The appellant's contention that refund in respect 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail suo motu credit on the amount paid by them erroneously earlier. I find force in the argument of Ld.A.R. that the judgments of Tribunal in S.B. Resheller s case and Birla Coper s case (supra) no more good law being contrary to the ratio of Larger Bench Judgment in BDH Industries case (supra). Consequently, the suo motu credit availed by the appellant is inadmissible to them. However, I agree with the Ld. Consultant that the Ld. Commr. has erred in imposing penalty without issuing them any notice as required under Section 35A (3) of the Central Excise Act and also erred in not mentioning the specific provision under which penalty of Rs.10,000/- imposed. Consequently, the penalty imposed on the appellant by the Ld.Commr. (Appeal) is set as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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