CCE Vs. MAGNUM IRON AND STEEL PVT. LTD.

JUDGEMENT

(1.) REVENUE filed this appeal against the Order -in -Appeal No. IND -I/333/2006 dated 31.10.2006 passed by the Commissioner (Appeals), whereby Adjudication Order was set aside. The Adjudicating Authority was directed to check the correctness of the refund claim and allow them to take re -credit of the excess amount deposited by them in June, 2005 in their Personal Ledger Account.

(2.) LD . DR on behalf of the Revenue submits that they have deposited the excess amount in their PLA vide Sl. No. 4 dated 3.6.2005 and filed the refund claim on 4.7.2006, which is barred by limitation. He further submits that the Commissioner (Appeals) erroneously observed that the respondent could have taken re -credit of the excess amount debited by them. He also submits that the findings of the Commissioner (Appeals) is contrary to the Larger Bench decision of the Tribunal in the case of B.D.H. Industries Ltd. v. CCE (Appeals), Mumbai -I reported in, 2008 (229) ELT 364 (T -LB). He also submits that the Larger Bench of the Tribunal held that any refund claim even the excess amount would be subject to unjust enrichment. In the present case, the respondent failed to establish that the amount of duty has not been passed to any other person.

(3.) AFTER hearing both the sides and on perusal of the records, it is seen that as per ER -1 Report of May, 2005, the total duty was liable to be paid as Rs. 56,59,415.00, which they paid from Cenvat Account Rs. 46,59,415/ - and from PLA Rs. 10,50,000/ - instead of Rs. 10,00,000.00. Thus, there is a excess payment of Rs. 50,000/ -, for which they claimed refund by their letter dated 25.5.2006. Ld. DR submits that this letter cannot be treated as a refund for the reason that the same was written to the Superintendent of Central excise, who is not the competent authority. He also submits that the refund claim in proper form was filed on 4.7.2006, which is the relevant time in terms of Section 11B of the Act.