Per M.V. Ravindran : This is an appeal directed against the Order-in-Appeal dated 1.9.2003, wherein the Commissioner (Appeals) has held that the appellants were in error, when they took the credit of excess duty paid by them.

2. Relevant facts of the case are that the appellants are manufacturers of Iron and Steel castings and were duly discharging their duty liability. During the month of March, 1997 i.e. on 15.3.97 they cleared their goods on payment of duty @ 20% Ad val. In fact the rate of duty on the appellants products was reduced from @ 20% to 18% from March, 1997. This fact is not disputed. The appellants, noticing the error, took the credit of the duty excess paid on 26.3.97. This action of the appellants is in dispute and a show cause notice was issued to the appellants directing them to show cause why the credit taken by them should not demanded and penalty imposed. The adjudicating authority confirmed the duty and imposed penalty on the ground that the appellants cannot take the credit of the duty paid in excess on their own and should have filed refund claim under Section 11B. The Commissioner (Appeals) also upheld the same order on the same ground.

3. The learned Advocate for the appellants submits that the appellants are working under SRP procedure and under this procedure they can take the credit of the duty paid in excess on the same way as they can pay the duty on their own, if they have short paid the duty. She also further submits that the appellants have taken the credit in the same month and have intimated the Range Supdt., Central Excise about the same in their RT-12. The learned Advocate submits that they have produced the C.A.'s certificate that Credit availed by their customer is only of the duty @ 18%, hence, there is no question of unjust enrichment. She relies upon the decisions in the case of -

(i) Tide Water Oil Company Vs. CCE, Chennai - 2002 (52) RLT 463 (CESTAT)

(ii) CCE, Noida Vs. Flex Industries Ltd. - 2005 (180) ELT 251 (T)

Wherein in the identical situation arose and the Hon'ble Tribunal has held the issue in favour of the assessee.

4. The learned DR on the other hand submits that, the appellants should have followed the procedure of the refund as provided under Section 11B of Central Excise Act, 1944, and cannot avail the suo moto credit for the duty paid in excess. He also relies upon the case of Pharma Impex Laboratories Pvt. Ltd. Vs. CCE, Kolkata - 2005 (70) RLT 177 (CESTAT) to drive home his point.

5. Considered the submissions made by both sides and perused the records. I find that the appellant has taken the credit of the duty excess paid by them in the month of March, 1997 itself. That is to say the error was detected by the appellant before the end of the month and has on his own corrected the error. I also see considerable force in the arguments of the learned advocate, that if there is a short payment of duty and if the appellants debits the same within the same month it acceptable to the Revenue, but in case of availment of credit of the duty paid in excess is not correct. The appellant is working under SRP System and the duty is cast upon him to discharge the correct duty liability. To discharge the correct duty liability if the appellant corrects the error in his record before the end of the month in question, there should not be any objection to that, and reflect the same in monthly Return R.T.-12. In this case appellant has done so. I am also fortified in my above view, by the decision of the Division Bench of this Hon'ble Tribunal in the case of Tide Water Oil Company (supra) wherein it was held at para 6 that:

"We are of the considered opinion that for duty paid excess by way of debiting in RG-23A, assessees can take credit of Modvat Credit with a simple intimation to the Superintendent of Central Excise."

I also feel that the question of unjust enrichment in this case does not arise as the appellants have produced Chartered Accountant's certificate, which clearly state tha