Per K.K. Agarwal : We have heard both sides on the issue referred to us viz. "If an assessee avails suo moto credit of the amount of duty paid in excess by him, whether the view taken by the Tribunal in the case of Comfit Sanitary Napkins (I) Pvt. Ltd. 2004 (174) ELT 220 will apply or the views taken by the Tribunal in the case of Motoralla India Pvt. Ltd. - 2005 (71) RLT 334 will apply."

2. For considering the above issue, it would be necessary to reproduce the facts of the case and the views taken by the Tribunal in these two cases.

3. In the case of Motorola.

In this case the assessee has by mistake debited an amount of Rs. 1,58,098/- in excess in the PLA/Cenvat account in the month of March 2001 and thereafter asked the department for permission to take credit of the amount paid by mistake. The department however advised him to file a refund claim. The appellant however contended that the amount erroneously debited was not duty. A refund claim was filed after a year which was rejected by Asst. Commissioner on the grounds of time bar. The Tribunal expressed a view that the amount deposited cannot be considered as duty, as duty paid on the goods has to be indicated on their invoices. As the amount erroneously paid in excess does not find mention in any invoices, in that sense it should be considered as deposit and not duty and accordingly the question of time bar, does not arise.

In the case of Comfit Napkins

It was held that the assessee cannot suo moto take credit without applying for refund when excess duty has been paid.

4. It was urged on behalf of the ld. Advocate for the appellants that in their case the goods were supplied under claim for rebate of duty and duty was paid once at the time of clearance of consignment and secondly at the end of the month when the duty is required to be paid in respect of all consignments cleared during the month. Since the duty was debited twice, they suo moto took the credit of the same and informed the department of it. Ld. Advocate took us to the book dealing with accounting procedure viz. Reliable Series of Book Keeping Standard XI by Ashok Narkar to show that error of debiting duty twice on the same product was in the nature of accounting error and this could be corrected by them without seeking prior sanction from the department and in this regard he place reliance on the following decisions of the Tribunal:-

1. Birla Copper - 2005 (191) ELT 239 (T)

2. Raymond Ltd. - 2006 (201) ELT 454 (T)

3. Lakshmi Machine - 2005 (185) ELT 417 (T)

4. Indo American Electricals - 1999 (108) ELT 797 (T)

5. Punjab Maize—1996 (84) ELT 369 (T)

6. Hind Spinners - 2005 (187) ELT 266 (T)

7. Visakhapatnam Steel Plant— 2002 (52) RLT 88 (CEGAT-Che.)=2002 (149) ELT 708 (T)

8. Raajratna Metal Inds. Ltd.— 2007 (218) ELT 458 (T)

9. Tide Water Oil Company— 2002 (52) RLT 463 (T)

5. In most of the decisions it was held that cross entry of credit taken to offset an incorrect debit entry by keeping cross references is the only prescribed method of accountants in Book Keeping. Such entry cannot be denied on grounds that only TR-6 challan amounts could be credit entries which could be made in the PLA/Cenvat and not others. In these decisions it was held that notice appears to be issued in ignorance of the instructions on maintenance of PLAs and Book Keeping Practices accepted by all over the world. Mere correction in the entries of the account does not require a refund application under Section 11B. Further there is no provision under the Central Excise Act and Rules for seeking permission of Asst. Commissioner for re-crediting credit amount wrongly debited. In such case restoration of credit is to be allowed as there is no provision for grant of refund of modvat credit. No permission from the department is required as only accounting adjustment are done and does not involve any question of excess or short payment. Credit entry in accounts is not duty and for an error no permission is required.

6. Ld. Advocate also refe