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TMI Blog2008 (7) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... cess by him, whether the view taken by the Tribunal in the case of Comfit Sanitary Napkins (I) Pvt. Ltd. 2004 (174) E.L.T. 220 will apply or the views taken by the Tribunal in the case of Motorala India Pvt. Ltd. - 2006 (193) E.L.T. 468 (T) = 2007 (7) S.T.R. 613 (T) = 2005 (71) RLT 334 will apply." 2. For considering the above issue, it would be necessary to reproduce the facts of the case and the views taken by the Tribunal in these two cases. 3. In the case of Motorola . In this case the assessee has by mistake debited an amount of Rs. 1.58,098/- in excess in the PLA/Cenvat account in the month of March 2001 and thereafter asked the department for permission to take credit of the amount paid by mistake. The department however advised him to file a refund claim. The appellant however contended that the amount erroneously debited was not duty. A refund claim was filed after a year which was rejected by Asst. Commissioner on the grounds of time bar. The Tribunal expressed a view that the amount deposited cannot be considered as duty, as duty paid on the goods has to be indicated on their invoices. As the amount erroneously paid in excess does not find mention in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-crediting credit amount wrongly debited. In such case restoration of credit is to be allowed as there is no provision for grant of refund of modvat credit. No permission from the department is required as only accounting adjustment are done and does not involve any question of excess or short payment. Credit entry in accounts is not duty and for an error no permission is required. 6. Ld. Advocate also referred to following decisions of Tribunal in which Suo Moto credit was allowed :- 1. Usha Beltron Ltd. - 1999 (109) E.L.T. 1006 (T) 2. Sanghi Polyesters - 2004 (169) E.L.T. 128 (T) 3. Indore Wire Company Ltd. - 2006 (203) E.L.T. 314 (T) 4. Anapurna Malleables Ltd. - 2006 (194) E.L.T. 458 (T) 5. Flex Industries - 2005 (180) E.L.T. 251 (T) 6. Jasch Industries - 2004 (169) E.L.T. 142 (T) 7. Veena Diecasters Engs. - 2007 (78) RLT 114 (T) 8. Jasch Industries Ltd. - 2006 (205) E.L.T. 349 (T) 9. Bill Metal Industries - 2004 (173) E.L.T. 412 (T) 10. Visakhapatnam Steel Plant - 2002 (149) E.L.T. 708 (T) 11. Gujarat Alkalies Chemicals - 2005 (190) E.L.T. 406 12. Sulekha Works - 1998 (102) E.L.T. 274 (T) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the credit was not duty and such refunds were covered under Section 11B of Central Excise Act. Ld. DR referred to the decision of Hon'ble Supreme Court in case of Mafatlal Industries Ltd. v. Union of India - 1997 (89) E.L.T. 247 (S.C.) especially paragraphs 68, 69, 82, 83, 84, 96 and 97 which clearly brings out that provisions of Section 11B and other similar provisions existing at the relevant time shall apply to claim for refund of any amount collected as duty of excise on the ground that the goods in respect of which amounts collected were not excisable or were entitled to exempt from duty and no court shall have any jurisdiction in respect of such claim. Prior to 1991 Section 11B (5) starts with a 'non obstante clause', it took every kind of refund and every claim of refund and it expressly barred the jurisdiction of courts in respect of such claim. Sub section 3 of now Section 11B clearly states that "notwithstanding anything to the contrary contained in any judgment, decree, order of direction of the appellate Tribunal or any court or in any other provisions of this Act or the Rules made thereunder or any law for the time being in force, no refund shall be made exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Act. The writ petition will be considered and disposed of in the light of any in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. The said enactments including Section 11B of Central Excises and Salt Act and Section 27 of the Customs Act do constitute "law" within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are self contained enactments providing for levy, assessment, recovery and refund of duties, imposed thereunder. Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Propositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not appeal to us as the debit entry made in the accounts is towards payment of duty only and therefore refund of these amounts has to be considered as refund of duty only. The PLA account and the credit accounts are required to be submitted to the department and any correction carried therein, need to have department's sanction. We also note that the law relating to refund has been fully analysed by the Apex Court in the case of Mafatlal Industries (cited supra) which makes it very clear that all types of refund claim be there of excess duty paid or otherwise are to be filed under Section 11B and have to pass the proof of not passing on the incidence of duty to others. The recent decisions of Hon'ble Supreme Court in case of Sahakari Khand Udyog and Others clearly laid down that all refunds have to pass through doctrine of unjust enrichment, even if it is not so expressly provided for in the statute. From these decisions it clearly emerges that all types of refund have to be filed under Section 11B of the Central Excise Act and no suo moto refund can be taken unless and until the department is satisfied that the incidence of duty has not been passed on. 13. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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