9911796707
TMI Blog2013 (10) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... to M/s. Dinesh Agency, which was owned by the brother of the proprietor of the respondent. The Superintendent (AE) directed the respondent to pay differential excise duty in respect of clearances made by them to M/s. Dinesh Agency on the ground that sale is to the related person and therefore, duty was payable 115% of the cost of production. In view of the directions of the Superintendent, the respondent paid the differential duty of Rs.68,159/- by debiting the Cenvat credit account vide entry No. 36 & 37 dated 01/07/2001 in RG-23 Part-II. The respondent did not make the payment under protest. Thereafter, CBE&C Circular dated 01/07/2012 came to be issued and the respondent realized that as per the said circular, they were not liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production. I find that Section 4 of Central Excise Act, 1944 has been formulated to determine value of excisable goods manufactured for the purpose of levy of Central Excise duty. Further Rule 9 of Central Excise (Valuation) Rules, 2000 provides for valuation of manufactured goods cleared entirely to a related person. It is seen that the Board vide Circular No.643/34/2002-CX dated 1/7/2002 at point No.12 has issued clarification this regard. In the present case, the department has not produced any evidence to show that the transaction is not at arms length or that the appellants were required to pay duty in terms of Rule 9 of the Central Excise (Valuation) Rules, 2000. In such circumstances, in the first place there is no basis for the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. 3.1. The Ld. Additional Commissioner (AR) appearing for the Revenue reiterates the grounds urged in the appeal memorandum. He also relies on the decision of this Tribunal in the case of Vighnahar SSK Ltd. Vs. CCE, Pune - 2012 (275) ELT 108 (Tri-Mum), wherein similar circumstances, it was held that suo motu re-credit cannot be taken after a lapse of 1 1/2 years from the date of payment and the assessee should have filed a refund claim, which would have to pass test of unjust enrichment. He also relies on the decision of the Larger bench of this Tribunal in the case of BDH Industries Ltd. - 2008 ELT (229) ELT 364 (Tri-LB) wherein it was held that any correction in PLA / Cenvat account need to have departmental sanction and in the absenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid. Subsequently, when the appellant realized that he had made the payment of duty wrongly, he should have filed a refund claim in accordance with the provisions of Section 11B. In the present case, it is seen that the payment was made in July 2001 and re-credit has taken in November, 2002. One year time for filing the refund claim from the date of payment had already lapsed. Therefore, to overcome the provisions of time bar, the appellant resorted to taking suo motu credit. There is no provision in Central Excise law for taking suo motu credit as held by the Larger Bench of this Tribunal in the case of BDH Industries Ltd. and Vighnahar SSK Ltd. cases (cited supra). Therefore, taking of suo motu credit by the appellant was not in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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