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TMI Blog2013 (11) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT Credit Rules, 2004 on the Appellant is unwarranted and unjustified - Thus, the imposition of penalty under Rule 15(1) of the Rules set aside - Decided partly in favour of Assessee. - APPEAL NO.E/A/409/2011 - ORDER NO.FO/A-71058/2013 - Dated:- 13-9-2013 - DR. D.M.MISRA, J. For the Appellant : SHRI N.K.CHOWDHURY, ADVOCATE For the Respondent : SHRI S.MISRA, A.R.(ADDL. COMMR.) JUDGEMENT This Appeal is directed against the Order-in-Appeal No.22/HAL/2011 dated 23.02.2011 passed by the Commissioner of Central Excise (Appeals), Kolkata. Briefly stated the facts of the case are that the Appellant are engaged in the manufacture of Roller, Spring, Peeled Bright Bar etc. falling under various Chapters of the Central Excise Tari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f BDH Industries Ltd. vs. CCE(Appeals), Mumbai-I, 2009(229)ELT 364(Tri.-LB), which has been followed in the case of Vighnahar SSK Ltd. vs. CCE, Pune, 2012(275) ELT 108(Trib.-Mumbai). Hence, taking suo motu credit is not permissible and since the recredit has been availed in contravention of the provisions of law, penalty is imposable. 4. In his rejoinder, the ld. Advocate has submitted that the Larger Bench decision in BDH Industries case(supra) has been appealed against before the Hon ble Bombay High Court and the appeal has been admitted as reported in 2009(240)ELT-A-143(Bom.). 5. Heard both sides and perused the records. I find that the issue of taking suo motu recredit is no more res integra. The issue has been settled by the Larger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied that the incidence of duty has not been passed on. 13. In view of above, we answer the reference made to us by holding that all types of refund have to be filed under Central Excise Act and Rules made thereunder and no suo moto credit of the duty paid in excess may be taken by the assessee. The matter is now sent back to the referral bench for passing appropriate orders on the appeal before it. In view of the principles laid down in BDH Industries case(supra), suo motu recredit by an assessee cannot be permitted. However, I find that there is no evidence/material brought on record by the Revenue that suo motu recredit had been availed by the Appellant with a mala fide intention. On the contrary, I find that prior to the aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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