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TMI Blog2018 (3) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of recipient. In the BDH Industries [2008 (7) TMI 78 - CESTAT MUMBAI], it was held that the suo motu credit of duty or refund cannot be taken by assessee without sanction by a proper officer. Appeal dismissed - decided against appellant. - Appeal No. E/58508/2013-EX[SM] - Final Order No. 60695/2018 - Dated:- 9-2-2018 - Mr. Devender Singh, Member (Technical) For the Appellant : Sh. B.L. Yadav, Consultant For the Respondent : Sh. Harvinder Singh, A.R. ORDER Per : Devender Singh The appellant are in appeal against the Order-in-Appeal No. 70/CE/Appl/D-II/13 dated 03.04.2013 passed by the Commissioner of Central Excise (Appeals), Delhi-II. 2. Brief facts of the case are that the appellant are engaged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which extra burden has been put on them and pleaded that as their buyers refused to accept the supplementary invoices and returned back the original copies of the invoices, they were justified in taking Cenvat credit on central excise duty paid by them. He also invited attention to para 6 of the Order-in-Appeal and stated that the Delhi Collectorate under Trade Notice No. 83/69 dt. 24.07.1969 clarified that if the assessee makes a mistake in calculating the balance in his PLA or commits an error in calculation on any gate pass, he may make debit or credit entry in PLA. He further stated that the Cenvat provisions allow the Cenvat credit on supplementary invoices. He argued that the suo motu credit on duty paid invoices could be taken. He re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. I find that the Cenvat Credit Rules prescribe the documents on which Cenvat credit can be taken. One of the documents is supplementary invoice issued by the manufacturer from his factory on which the recipient can take the Cenvat credit. In the instant case, the recipient did not accept the impugned invoices. In that situation, the impugned invoices do not become the eligible document for taking the credit by the manufacturer himself as the invoices are in the name of recipient. The CBEC has prescribed the following procedure in such cases of cancellation of invoices in Chapter IV at para 12, which is reproduced below: 12.1 When an assessee is compelled to cancel an invoice, the following actions should be taken:- - Intimati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation did not apply in that case as the excess duty paid was not duty. As the facts are different from the present case and issue is not limitation in present case, the ratio of the same is not applicable here. 7.2 The appellant also relied on the Tribunal s judgment in the case of Pushp Enterprises (supra). I find that in the said case there was suo motu availment of duty paid twice and the Tribunal took the view that the Larger Bench s judgment of this Tribunal in the case of BDH Industries Ltd vs. Commissioner 2008 (229) ELT 364 (Tri. L.B.) was not applicable and allowed the benefit of suo motu credit. However, I find that the Larger Bench of this Tribunal in the case of BDH Industries Ltd (supra) based their decision relying on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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