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TMI Blog2024 (8) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the case of Mafatlal Industries [ 1996 (12) TMI 50 - SUPREME COURT] , Sahakari Khand Udyog Mandal Ltd. [ 2005 (3) TMI 116 - SUPREME COURT ] and by the Larger Bench in the case of BDH Industries Ltd. [ 2008 (7) TMI 78 - CESTAT MUMBAI-LB] that unless the duty is held to be unconstitutional there is no question of claiming refund under any other provisions other than what is specified in the Central Excise Act,1944. Therefore, the fact that the appellant should not have taken recredit of duty but should have filed a refund claim under Section 11B of the Central Excise, 1944. Time Limitation - HELD THAT:- The refund claim could have been could have been filed at any given point of time. As rightly claimed by the appellant, there is no su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty collected by the appellant on the tractors which were cleared by claiming exemption vide Notification No. 6/2002-CE dated 01.03.2002 as amended by Notification No.23/2004-CE dated 9.7.2004. The appellant paid duty amounting to Rs.10,39,858/- under protest and the duty was paid through cenvat credit. Subsequently vide Order-in-Original No.5/2007-LTU dated 12.2.2007, the above demand was set aside. The appellant based on the above order, took suo moto cenvat credit instead of filing a refund claim which was not correct in accordance with the provisions of the Cenvat Credit Rules, 2004. Accordingly, show-cause notice dated 17.8.2009 was issued demanding the irregularly availed credit along with interest. The original authority vide order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not allege any facts that were suppressed by the appellant with intend to evade payment of duty nor there is any mis-declaration or mis-statement on the part of the appellant. Since duty was paid under protest, their claim could have been made at any given point of time. She further submitted that the issue as to whether suo moto credit is eligible was the contentious issue, which was referred to Larger Bench. This itself proves that when there is no clear-cut decision on the issue, the question of suppression does not arise and relying on the decision in the case of Vodafone Essar South Ltd. Versus Commissioner of Service Tax: 2020 (43) GSTL (249) (Tri.-Bang.), it is submitted that the question of suppression does not arise. 3. The Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of Section 11B of CEA 1944, doctrine can be invoked to deny benefit to which a person is not otherwise entitled Section 11B ibid or similar provision merely gives legislative recognition to this doctrine that however does not mean that in absence of statutory provision a person can claim or retain undue benefit . . Further, it is submitted that the Larger Bench in the case of BDH Industries Ltd. Vs. CCE (Appeals), Mumbai-I: 2008 (229) ELT 364 (Tri-LB), it was clearly held that suo moto credit/refund cannot be taken. 3.2 With regard to limitation, it is submitted that the fact of suo moto availment of credit was not intimated to the department and it came to their knowledge only during audit and the said act of the appellant amounts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit they had taken recredit once the demands were dropped. 5. Section 11B of the Central Excise Act of 1944 reads as under: 11B: Claim for refund of duty. - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by him and the inciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the Department only at the time of audit and the impugned order does not mention anything on suppression or invoking of proviso to Section 11A for demanding duty beyond the normal period. The Commissioner (Appeals) in the impugned order does not deal with suppression nor has given any reasons to invoke proviso to Section 11A except for confirming the demand along with interest under Section 11AB and penalty under Section 11AC. In view of the above, the demand being beyond the normal period cannot be sustained. The Tribunal in the case of Vodafone Essar South Ltd. (supra) has observed as follows: 7. The Tribunal in the said decision has also followed the decision of the Karnataka High Court in the case of CCE, Bangalore v. MTR Food Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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