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TMI Blog2017 (5) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... y following the decision of Motorola India Pvt. [2006 (7) TMI 223 - HIGH COURT OF KARNATAKA] - appeal allowed - decided in favor of appellant. - E/71334/2013 - FO/A/75651/2017 - Dated:- 18-4-2017 - Shri P. K. Choudhary, Judicial Member Shri. Rajesh Chhibbar, Advocate for the Appellant Shri. S. S. Chattopadhyay, Suptd. (AR) for the Respondent ORDER Per: Shri P. K. Choudhary Briefly stated, the facts of the case are that the appellant availed and utilized Cenvat Credit for payment of duty for clearance of machineries / capital goods and purchased raw-materials / inputs from their units from August, 2008 onwards. Subsequently, the appellant debited the amount alongwith interest from their PLA account as the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the issue has no recurring effect. Further, the Tribunal in the case of Sopariwala Exports Pvt. Ltd. Vs. Commissioner of Central Excise, Vadodara-I (Supra) , on an identical issue allowed the appeal after considering the decision of the Larger Bench. The relevant portion of the said decision is reproduced below:- 10. At the first blush, I would have to agreed with the submissions made by the Revenue authorities that the judgment of the Larger Bench in the case of BDH Industries Limited (supra) would be applicable in this case, as the identical facts were decided by the Larger Bench but on deeper consideration, I find that the reference to Larger Bench was made by me in the case of BDH Industries Limited, sitting singly, onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But they advised the appellant to file a claim for refund. If at all a refund claim is required, the first letter informing the department of the mistake and requesting for permission to rectify the same should be taken as claim for the purpose of Section 11B. Alternatively, the contention of the appellant that the amount paid by mistake is not duty merits consideration. In fact, duty paid on the goods is indicated in the invoices. The amount erroneously paid in excess does not find mention in any invoices. In that sense, the amount paid should be considered as deposit and not duty. Therefore, the question of time bar does not arise. In any case, the denial of the refund claim for the excess amount paid on account of clerical error is unju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter noticing the material facts has chosen to allow the claim on the basis that the amount paid by mistake cannot be termed as duty in the case on hand. The Tribunal also stated that the time bar does not apply in such cases. Somewhat in similar circumstances, the Apex Court in India Cements Ltd. v. Collector of Central Excise - 1989 (41) E.L.T. 358 has chosen to accept the case of the assessee. The Madras High Court subsequently noticing the Judgment of the Supreme Court has also chosen to hold that the claim is reasonable on the facts of this case. In the light of the case laws, we are of the view that the order of the Tribunal does not require any interference by us. No question of law arises. The order is based on the law laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X
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