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TMI Blog2012 (7) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... rable. The duty payment was made without availing the exemption under notification 108/95-CE later they reversed the entry showing duty payment on the ground that they were eligible for the exemption. - This type of re-credit clearly amounts to taking refund of excise duty paid. Such refund has to pass through the test of time bar and unjust enrichment. So assessee could not have re-credited the amount in his account on his own without filing a refund claim. - 1218 to 1221 of 2005 - - - Dated:- 13-1-2012 - Ms. Archana Wadhwa, Shri Mathew John, JJ. Appeared for Appellant : Shri Z.U. Alvi, Advocate Appeared for Respondent : Shri R.K. Verma, A.R. Per Mathew John : In this proceeding four Appeals filed by M/s Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch cases. (a) Kamakhya Steels (P) Ltd. vs. CCE -2000 (121) ELT 247. (b) Grasim Cement Ltd. Vs. CCE 1997 (96) ELT 354. (c) UP State Sugar Corporation Ltd. Vs. CCE -2001 (137) ELT 1029 2.2 Restoration of Wrongly Debited Credit (Rs.2,34,000/-) Appellants by mistake debited duty corresponding to three sets of windings whereas only one set of winding was dispatched. The wrong debit of Rs.2,34,000/- was restored vide re-credit entry No. 4255 dated 23.12.1998 (At the relevant period the Appellant s assessment were provisional only). Since the debit was clearly erroneous and related to goods which were never dispatched/removed, not being case of valuation or rate of duty, it fell in the category of proper correct maintenance of accounts u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se on similar issue the Hon ble Tribunal has allowed the credit in F.O. No. 506-508/2008-Ex. dated 22.7.2008 Appeal No. 1219/2005 3. In this case, the total disputed amount is Rs.22,19,114/-. This amount is split into two separate categories and submissions made by the Appellants in respect of these two categories are as under :- 3.1 Disallowance of Credit Adjustment Entry (Rs.21,48,000) 3.1.1 It is not in dispute that Appellants were eligible to clear the transformer to M/s A.P. Taransco for their project funded by World Bank Loan without payment of duty under exemption Notification No. 108/95-CE dated 28.8.1995 w.e.f. 15.9.1999 as duly allowed by jurisdictional Deputy Commissioner C.E. on submission on 15.9.99 of requisite cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al as such the debits of duty in RG-23A Part-II Account also stood provisional. Hence when the effective contractual price came down due to negative price variation making initial provisional debits of duty in excess of duty legally leviable, the excess debits were restored through re-credit entry. 3.2.2. Since the facts that duty was debited under duly approved provisional assessment procedure under Rule 9B, only and Department has not disputed that there was excess debit of duty, such excess debit ought to have been allowed credit at the time of finalisation of assessment. 3.2.3. It is prayed that the matter be remanded to original adjudicating authority to verify about allowance of credit towards excess payment debits, at the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dispute that re-crediting of amount debited has been done only after full quantity of inputs were, after processing, received back in Appellant factory in terms of rule 57F (7) (9). Since full quantity of inputs issued to the job workers has undisputedly been received re-credit under rule 57F(7) was admissible. Rule 57G(5) which has been invoked for disallowing the re-credits, applied to initial availment of credit under Rule 57A. 5.2.3 Since sub-rule 57F(7) starts with non obstante clause Notwithstanding anything contained in Rule 57A, hence sub-rule 57(G) which govern admissibility of credit u/r 57(A) has not application to the case. In similar situation in Appellant own case the Hon ble Tribunal has vide following orders, allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine this issue. 9. The only issues to be examined are those listed in para 2.2 (re-credit of debits made by wrong entries) and para 3.1 (re-credit on account of clearances for which exemption notification 108/95). 10. We find that in the issue at para 2.2 is that the appellants made two debits for the same clearance by mistake. Whether a refund application is required to be filed to reverse such wrong debits is an issue on which contrary decisions of the Tribunal exists. We follow the decision of the Larger Bench of the Tribunal in the case of BDH Industries supra and hold that the suo motto credit taken is not proper and is recoverable. 11. 1 Now the issue is about the re-credit taken as discussed in para 3.2. The duty payment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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