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TMI Blog2013 (5) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... UT/Bond, the wrong debits made by the appellant in the Cenvat Credit Register, was required to be re-credited in the respective Cenvat Register and this was not a wrong duty as has been held by the lower authorities. Held that:- the amount paid by mistake cannot be termed as duty in the case on hand - Following the decision of Motorola India Pvt. [2006 (7) TMI 223 - HIGH COURT OF KARNATAKA] decided in favor of assessee - demand set aside. - E/948 of 2011 - A/10224/2013-WZB/AHD - Dated:- 13-2-2013 - Hon'ble Mr. M.V. Ravindran, Member (Judicial) For the Appellant : Shri S.R. Dixit, Advocate For the Respondent: Shri K.N. Joshi, A.R. JUDGEMENT Per : Mr. M.V. Ravindaran; This appeal is directed against order in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f amount with interest and imposition of penalty under Rule 15 of the Cenvat Credit Rules, 2004. The adjudicating authority vide impugned order dated 30.6.2010 confirmed the all charges framed under show cause notice dated 15.5.2009. 3. Aggrieved by such an order of adjudicating authority, appellant filed an appeal before the first appellate authority. The first appellate authority, did not agree with the contentions raised by the appellant and after following the due process of law, concurred with the views of the adjudicating authority and upheld the order in original. 4. Learned counsel appearing on behalf of the appellant would draw my attention to the facts of the case. It is his submission that the appellant herein is not required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Larger Bench in Paragraph No. 12. It is his submission that this decision has not been set-aside by any other forum. 6. In a rejoinder, learned counsel would submit that the decision of the BDH Industries Limited was in the light of the contradictory decision of Motorola India Pvt. Limited and Comfit Sanitary Napkins (I) Pvt. Limited. It is his submission that the decision in the case of Motorola India Pvt. Limited was carried in appeal by the Revenue before the Hon'ble High Court of Karnataka wherein the Hon'ble High Court of Karnataka has upheld the said order. It is his submission that this decision of the Hon'ble High Court was not brought to the notice of the Larger Bench when the matter was being decided. 7. I have consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w as has been decided by the Larger Bench seems to be incorrect on the face of the fact that the judgment of the tribunal in Motorola India Pvt. Limited was carried in appeal before the Hon ble High Court of Karnataka and their Lordships have upheld the said order. It is seen from the case of BDH Industries Limited that the said judgment of the Hon ble High Court of Karnataka was not brought to the notice of the Larger Bench when they heard the Larger Bench reference. In order to appreciate the correct position of the law, I, first, reproduce the ratio laid down by the tribunal in the case of Motorola India Pvt. Limited, which is as under:- 6. We have gone through the records of? the case carefully. In the month of March 2001, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt]. - Revenue is before us aggrieved by the order dated 1-9-2005 passed in appeal No. E/83/2004 by the Customs Excise Service Tax Appellate Tribunal, Bangalore. 2. The respondent-assessee by mistake debited an amount of Rs. 1,58,099/- in excess of the duty payable in their PLA/CENVAT account for the month of March 2001. The same was brought to the notice of the Department by the respondent in terms of a letter dated 12-6-2001. The authorities directed the respondent to file a refund claim. Another letter was submitted by the assessee stating therein that there was an error committed in the matter. Subsequently, a refund application was also filed by the assessee. Claim was rejected on the ground of lapse of time by the Assistant Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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