MAHAVIR VANASPATI CO. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THIS appeal is directed against the order in appeal of the Commissioner (Appeals) upholding the original order of the Assistant Commissioner directing recovery of a sum of Rs. 22,221/ - under Section 11A of the Central Excise Act with interest in terms of Section 11AB of the Act, and imposing penalty of equal amount in terms of Section 11AC read with Rule 25 of the Central Excise Rules, 2002.

(2.) THE Appellant took credit of the amount in question by making entry in PLA on the strength of an order, dated 8 -3 -2001, by which the original order had been set aside. According to the Appellant, as a consequence of setting aside the order, it became entitled to refund of the amount which had been paid under protest. The Appellant also relied on the order of the Commissioner (Appeals) dated 17 -9 -2003 allowing the credit.

(3.) LEARNED Jt. CDR submitted that the issue involved in this appeal is covered by the recent decision of the Tribunal in BDH Industries Ltd. v. C.C.E. (Appeals), Mumbai -I [Appeal No. E/1218/06] reported in 2008 TIOL CESTAT Mum LB, 2008 (229) E.L.T. 364 . After going through the judgment, I am satisfied that the submission of the Jt. CDR is well founded and the appeal has to be dismissed. The Larger Bench has held that all types of refund claims have to be filed under Central Excise Act and Rules made thereunder and no credit of the duty paid in excess can be taken suo motu by the Assessee. In coming to the conclusion the Larger Bench noticed two decisions of the Supreme Court in Mafatlal Industries Ltd. v. UOI : 1997 (89) E.L.T. 247 (S.C.) and Sahakari Khand Udyog Mandal Ltd. case : 2005 TIOL 54 SC : 2005 (181) E.L.T. 328 (S.C.), in which doctrine of 'unjust enrichment' was held to be one of universal application governing all cases of refund. Thus, without being satisfied that incidence of duty has not been passed on to the consumer at large, the refund cannot be allowed on any ground much less taken suo motu by way of credit by the party. In view of the said decisions, I find no error in the impugned orders of the authorities below to warrant interference by the Tribunal.