LUPIN LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE appeal and stay application are directed against Order -in -Appeal No. BPS/60 -61/LTU/MUM/2013, dated 25 -4 -2013 passed by the Commissioner of Central Excise & Service Tax (Appeals), LTU, Mumbai. The appellant, M/s. Lupin Ltd., have a unit located in Jammu & Kashmir. Vide Notification No. , dated 14 -11 -2002 the assessee is eligible for duty exemption which is granted by way of a refund mechanism. For various goods, the eligible amount of refund is notified in the said Notification itself and the assessee can take suo motu refund of the eligible amount within 7 days from the close of the month and the assessee is required to furnish a detailed statement of the refund taken to the jurisdictional Assistant Commissioner by the 15th of the next month. On submission of such statement, the jurisdictional Assistant Commissioner is required to examine the claim of the assessee by 15th of the subsequent month and if the appellant has taken any excess credit (refund) as determined by the Assistant Commissioner, the assessee is required to reverse the excess amount within five days from the date of intimation of the order of the Assistant Commissioner. In the present case the appellant availed excess credit amounting to Rs. 1,35,920/ - for the month of April, 2011. This excess credit was reversed by them on 7 -7 -2011 and a statement of the amount of credit taken was also submitted to the jurisdictional authorities. However, the determination of excess credit taken by the appellant was done by the Assistant Commissioner vide Order No. LTU/MUM/CX/GLT -4 -Ref/298, dated 2 -4 -2012 wherein the adjudicating authority determined the credit taken under clause (e) of sub -paragraph 2C of the Notification and appropriated the amount already reversed by the appellant. He also demanded interest of Rs. 3,195/ - on the said excess credit taken under Section 11AB of the Central Excise Act, 1944 and also imposed an equivalent amount of penalty under Section 11AC.

(2.) THE learned counsel for the appellant submits that as per Notification No. , time -limit has been laid down in sub -para 2C with respect to taking of the credit, reversal of the excess credit taken, determination of the excess credit taken by the excise authorities, compliance with the directions of the jurisdictional authorities by the appellant, and so on. In the present case, the appellant availed excess credit of Rs. 1,35,920/ - in April, 2011 and the same was reversed on 7 -7 -2011. The statement of the excess credit availed was also submitted to the Excise authorities and the jurisdictional authorities determined the excess credit taken only by the order dated 2 -4 -2012. As per the provisions of clauses (e), (f) and (g) of sub -para 2C, the appellant is required to reverse the excess credit after determination by the excise authorities within a period of 5 days from the date of intimation and if the appellant fails to do so, then he will be liable to interest and penalty. In the present case, the appellant has reversed the excess credit much before the determination and,, therefore, the question of payment of any interest and imposition of penalty does not arise nor sanctioned by the provisions of the said Notification. Accordingly, lie pleads for grant of stay.