Customs, Excise and Gold Tribunal - Delhi
Bhopal Wires Pvt. Ltd. vs Commissioner Of Central Excise on 13 June, 2002
Equivalent citations: 2003(160)ELT643(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. Shri P.N. Kaul, learned Advocate, submitted that M/s. Bhopal Wires Pvt. Ltd. manufacture Electric Transformer and Conductors and avail of Modvat credit of duty paid on inputs; that on 12-11-97 they inadvertently took credit of Rs. 93,000/- instead of Rs. 16,740/-; that thus an amount of Rs. 76,260/- was taken in excess by them; that the Appellants after detecting the mistake themselves reversed the excess amount on 28-11-97 by entry No. 346 in RG 23A, Part II. He, further, submitted that on 25-11-97 the RG 23A showed a balance of Rs. 1,49,553/- which, in fact, should be only Rs. 73,293/- (by deducting excess credit taken by them); that in addition the Appellants had taken a credit of Rs. 22,976/- on 25-11-97 bringing the credit amount in balance to Rs. 96,269/-; that they had debited Rs. 1,17,418/- in RG 23A, Part II whereby they paid duty short by Rs. 21,149/- and not Rs. 44,125/- as held by the Asstt. Commissioner; that again on realizing their own mistake they deposited suo motu Rs. 26,739/- as Modvat credit at entry No. 335 of RG 23, Part II; that in view of this fact there is no case for recovery of amount of Rs. 44,125/- with interest thereon which was confirmed by the Asstt. Commissioner under the Adjudication Order dated 15-12-98. He also mentioned that the Asst. Commissioner has ordered that the duty short paid of Rs. 44,125/- is to be recovered in cash. The Asstt. Commissioner also imposed a penalty of Rs. 2,000/-; that on appeal, the Commissioner directed them vide Interim Stay Order No. 1034/99, dated 28-10-99 to deposit the entire amount of duty; that they deposited the amount of Rs. 44,125/-; that the Commissioner (Appeals) under the impugned Order set aside the penalty but upheld the demand of duty. He submitted that as the duty amount has been deposited twice - once on 26-11-97 and again second time on 4-11-99 in compliance of Interim Stay Order passed by the Commissioner (Appeals) they are entitled for refund of the duty amount which has not been allowed to them by the Commissioner (Appeals).
2. Countering the arguments Shri S.C. Verma, learned D.R., submitted that on 25-11-97 when the excisable goods were cleared by debiting the Modvat credit in RG 23A, Part II which was actually not having sufficient balance on account of excess credit taken by them, the goods were cleared from the factory on short payment of duty; that the Asstt. Commissioner and the Commissioner (Appeals) have only confirmed the demand of duty which was short paid by the Appellants at the time of clearance of goods and as such there is no infirmity in the Orders passed by them; that if the Appellants had deposited duty twice as claimed by them they should have claimed the refund of duty paid second time. The issue before the Tribunal is the confirmation of the demand of duty as neither the Asstt. Commissioner nor the Commissioner (Appeals) has dealt with the refund of duty.
3. I have considered the submissions of both the sides. It is not disputed by the Appellants that on 25-11-97 when the excisable goods were cleared by them involving duty of Rs. 1,17,418/- actually balance available in their RG 23A, Part II was only Rs. 73,293/- and as such they had discharged the duty liability short by Rs. 44,125/-. The show cause notice issued to them was for the recovery of the said duty short paid by them for disallowing the Modvat credit taken by them in excess. The Asstt. Commissioner in the Adjudication Order has decided only these two issues, namely confirmation of the demand of duty short paid by them and disallowing the Modvat credit taken by them in excess. On query from the Bench the learned Advocate admitted that the demand of duty is not disputed by them. The Commissioner (Appeals) has also confirmed the demand of duty which was short paid by them under the impugned Order. I agree with the submissions of the learned D.R. that if the duty short paid has been made good by the appellants twice, the right course available to them is to file refund of duty paid second time. In the proceedings before the Tribunal the issue is not the refund of the duty but the confirmation of the demand which is not disputed by the Appellants. In view of this the appeal is infructuous and is accordingly dismissed.