Custom, Excise & Service Tax Tribunal
M/S. Nicco Corporation Ltd vs Commissioner Of Central Excise, ... on 13 August, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Stay Petition No.E/STAY/339/2010
&
Appeal No.E/289/2010
(Arising out of Order-in-Appeal No.04/CE/B-I/2010 dated 29.01.2010 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI S.S. KANG, VICE PRESIDENT
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. NICCO Corporation Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Customs & Service Tax, BBSR-I
Respondent (s)
Appearance:
Shri A.D.Ray, Advocate for the Appellant (s) Shri A.K. Sharma, Authorized Representative (JDR) for the Revenue (s) CORAM:
Honble Shri S.S.Kang, Vice President Date of Hearing/Decision :- 13.08.2010 Date of Pronouncement :- 13.08.2010 ORDER NO.
Per Shri S.S.Kang.
1. Applicant filed this Application for waiver of pre-deposit of penalty. Duty has already been paid. The issue is already covered by the decision of the larger Bench of the Tribunal in the case of BDH Industries Ltd. v. CCE(Appeals), Mumbai-I 2008 (229) ELT 364 (Tri.-LB). The issue involved in this Appeal is whether the manufacturer/assessee can take suo motu credit of the duty paid which as per the assessee is wrongly paid. This issue is now settled in favour of the Revenue in the case of BDH Industries Ltd. (supra). The Tribunal in that case held that there is no provision under Central Excise Act and Rules allowing suo motu credit of refund without sanction by the proper officer. In the present case there is no sanction of proper officer before taking the suo motu credit I find no merit in the Appeal. The same is dismissed. Stay Petition is also dismissed.
(Pronounced and dictated in the open court.) Sd/ (S.S.KANG) VICE PRESIDENT sm 2 Appeal No.E/289/2010