STI INDUSTRIES Vs. COMMISSIONER OF CENTRAL EXCISE, DAMAN

JUDGEMENT

(1.) THIS appeal is directed against Order -in -Appeal No. SRP/87/DMN/2013 -14, dated 5 -6 -2011.

(2.) THE demand has been made against the appellant on the ground that the appellant is a 100% EOU. It was observed that the appellant had applied for refund of terminal excise duty before Development Commissioner, KASEZ and debited the amount of Rs. 14,87,572/ - vide CENVAT to satisfy the condition i.e non -availment of CENVAT credit towards refund of terminal excise duty. Thereafter, the appellant availed suo motu credit of the said amount. During audit it was found that they have availed credit of Rs. 14,87,572/ - without having proper documents. A show cause notice was issued to appellant to disallow and recover the credit under Rule 14 of CCR, 2004 read with provision to Section 11A(1). It was also proposed to impose interest under Rule 14 of CENVAT Credit Rules, 2004 and to impose penalty under Rule 15 of CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. The adjudicating authority confirmed the demand and imposed penalty upon the applicant. The Appellate Commissioner upheld the adjudication order. The Appellate Commissioner also relied upon the judgment of BDH Industries - 2008 (229) E.L.T. 364 and Mafatlal Industries - 1997 (89) E.L.T. 247 (S.C.) to hold that if an assessee pays the duty in excess in that case the claim will have to pass the test of unjust enrichment, even if it is not expressly provided for in the statute.

(3.) HEARD both sides and perused the records.