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TMI Blog2013 (11) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... ir input cost has increased, raised the prices of steel tubes from back date and for this purpose, issued supplementary invoices to their customers, under which they also paid duty on the escalation amount through cenvat credit. The duty paid on the escalation amount was Rs.5,63,909/-. The customers, however, did not accept the price escalation and did not make payment either of the escalation amount or of the duty paid under the supplementary invoices and subsequently, after negotiation, the appellant decided not to recover the escalation amount and duty thereon from the customers. Since the appellant had already paid the duty of Rs.5,63,909/- on the escalation amount, which according to them was not recovered by them from their customers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in the cases of CCE, Surat Vs. Unilex Cable Ltd. reported in2007 (212) ELT 393 (Tribunal-Mumbai) and S. Subrahmanyan & Co. reported in 2011 (268) ELT 497 (Tribunal-Ahmd.) has held that when the duty was paid twice by debit in cenvat credit account, the appellant could correct this mistake by taking suo moto credit of the second debit of the same duty and that in this regard, the judgement of the Larger Bench of the Tribunal in the case of BDH Industries reported in 2008 (229) ELT 364 (T-LB) is not applicable and that in view of this, the appellant have a strong prima facie case in their favour and hence, the requirement of pre-deposit of cenvat credit demand, interest and penalty may be waived for hearing of the appeal and recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be recovered under the supplementary invoices. However, the appellants customers did not pay the escalation amount and duty thereon against the supplementary invoices and after negotiation with the customers, the appellant decided not to recover the escalation amount and duty thereon from the customers. On this basis, the appellant took suo moto credit of the duty which they had paid on the escalation amount. The point of dispute is as to whether the appellant should have applied for refund under the appropriate provisions of the Central Excise Act or they could take suo moto credit of this duty. In the two judgements of the Tribunal cited by the ld. Counsel for the appellants viz. S. Susbrahmanyan & Company (supra) and Unilex Cable L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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