HIGH COURT OF CHHATTISQARH AT BILASPUR Hpn'ble Shri Dhirendra ffli^hra & Hon'ble Shri R.N. ChandrakaF^JJ, ADpeltant Tax Case No. 38 of 2009 Union of Commissione Vs. Resoondent india, Through Centra! Exctee and Customs Centrat Excise Bhawan, Dhamtari Road, Tlkarapara, Raipur (CG) 492 - 001. M/s Annapurna Maltebles Pvt. Ltd., 19, New ind. Area, Sarora, Ring Road No.2, Raipur (CG) Present: Shri Bhishma Kinger, Standing Counsel for the appellantfUOI. ORAL ORDER lih <20mSeptember,2010) PerDhirendra Mishra. J The appellanffrevenue has preferred this appeal under Section 35G of the Central Excise Act, 1944 (in short "ttie Act") against the order dated 17t October, 2005 passed by Customs Excise and Service Tax Appellate Tribunai, New Delhi, Principal Bench, New Delhi (in short 'Tribunal"), whereby allowing the appeal of the respondent-assessee, the order of Commissioner (AppeaSs) has been set aside. On perusal of the impugned order, it appears that tfie respondent cleared their goods i.e. iron ore and steel castings, on payment of duty @ 20% ad valorem during ttie month of March, 1997, friough rate of duty on the appellant's products was reduced from 20% to 18% from March, 1997. The appeltant noticing the error, took the credit of the duty excess paid on 26 March, 1997. The assessee was s.erved with a notice to show cause as to why credit taken by Uiem shouid not be demanded and penalty imposed. The adjudicating authority confirmed the duty and imposed penaMy on the ground that the appellant cannot take credit of the duty paid in excess on their own and instead should have fited refund claim under Section 11 B of the Act. The Commissioner (Appeals) upheld the order of the adjudicating authority. However, the Tribunal held that in case of avaiiment of credit of the ctuty paid in excess is not correct, since the appetlant is working under SRP system and the duty is cast upon them to discharge the correct duty liability % ffl^|B^|5aB|;8j|||||^||l||||||jj|@j||E^ and to discharge the correct duty liaMlity iftSe ajj'pellant corrects ttie error in their record before the end of the month in quesajpi^ there shoutd not be any objection to that, and reflect ttie saine in monttily XeturnR.T.-12. Relying upon ttie decision of the Diviston Bench of the Tribunal, it has been held that for duty paid excess by way of debiting in RG23A, assessees can take credit of Modvat Credit with a simpte intimation to the Superintendent of Central Excise. Shri Bhishma Kinger, leamed counsel for the appellant, submtts that in the instant case, the Tribunal was not justified in waiving the penalfy imposed by the adjudicating authority and confirmed by the appellate Commissioner. He submits that since the excess duty paid by the assessee was passed by the assessee to the customer, waiving of penalty woukl amount to unjust enrichment ofthe assessee. Heard tearned counsel for itie appellant and perused the impugned order. The Tribunal, consktering the Chartered Accountant's certificate produced by the assessee, according to which the assessee did not receive payment in exce^ of 18% duty, as also the certificate given by the assessee customer that they have not paid in excess of the duty @ 18% nor they have availed the credit in their Modvat record in excess of tte duty @ 18%, set aside the order of the appellate Commissioner. After hearing tearned counsel for the appellant and aftsr going through the impugned order passed by the Tribunal, we are of the Opinion that no question oflaw, much tess any substantial question of taw, as proposed by the appeilant, arises for adjudteation of this appeai. The appeal is wrthout any substance, the same deserves to be dismissed and is, accordingty, disniissect atjthe_ads}Jssion stage itsetf. Sd/- - ^ ^ Sd/- • Dhirendra Mishra R.N. Chandrakar Judge j judge p/