INDIAN OIL CORPN. LTD. Vs. CCE

JUDGEMENT

(1.) HEARD both sides.

(2.) APPELLANT filed this Appeal against the imposition of penalty under 11AC of the Central Excise Act read with Rule 25 of Central Excise Rules as the Committee on Disputes allowed the Appellant to pursue the Appeal in respect of penalty only. The case of the Appellant is that they had paid excess duty for the month of March and April, 2004 and that excess duty has been adjusted in respect of the duty payable for the month of April, 2005 and the same is reflected in their monthly return. The Appellant's case is that from their returns the Revenue asked for differential duty payable for the month of April, 2005. Subsequently show cause notice was issued for demand of duty with interest and for imposition of penalty. Adjudicating authority confirmed the demand along with interest and imposed the equal amount of penalty under 11AC of the Central Excise Act.

(3.) THE contention of Revenue is that Appellants are not entitled for taking suo motu credit of excess duty paid. The Revenue relied upon the larger Bench decision of Tribunal in the case of BDH Industries Ltd. v. CCE (Appeals), Mumbai -I, 2008 (229) ELT 364 (Tri. LB). The contention of Revenue is also that when Revenue wrote a letter asking for deposit of differential duty the Appellant in response disclosed that the less duty has been paid as the Appellant had paid excess duty for the earlier period. Therefore the Appellants are liable for penalty under Section 11AC of Central Excise Act. Revenue also argued that in the monthly return for the month of April, 2005 the Appellant had not mentioned anything regarding adjustment of duty suo motu. So it is the clear intention on their part to evade payment of duty.