Customs, Excise and Gold Tribunal - Bangalore
Commissioner Of Central Excise vs Comfit Sanitary Napkins (I) Pvt. Ltd. on 1 September, 2004
Equivalent citations: 2005(99)ECC111, 2004(174)ELT220(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. The Revenue is aggrieved with Order-in-Appeal No. 235/02 dated 17.4.2002 by which the appellant taking credit of Rs. 10,141 suo motto without applying for refund to the proper authority is questioned in this appeal. The Commissioner (Appeals) upheld the assessee's action in taking suo motto credit without filing the refund.
2. The assessee is absent and has requested the case to be decided on merits.
3. Ld. JDR submitted that appellants cannot take refund suo motto without filing an application and their action is in terms of law. He relied on the judgment rendered in the case of S.Kumar's Ltd. v. CCE, Indore 2003 (55) RLT 399 and that of CCE, Madras v. Addison & Co. .
4. We have considered the submissions and we note that the assessee cannot suo motto take credit without applying for refund when the excess duty has been paid. The Assistant Commissioner had confirmed the duty under Section 11D read with Section 11A and has imposed penalty under Rule 210 besides demanding interest under Section 11AA. The assessee before the Commissioner had urged that they could take suo motto refund. We are of the considered opinion that the Assistant Commissioner's Order is correct. The assessee cannot take suo motto refund but should follow the procedure laid down under Section 11B of the Act. The citation referred to by the DR deals on this point and is applicable to the facts of the case. The order passed by the Commissioner (Appeals) is not legal and proper and hence the same is set aside by allowing the Revenue appeal.