TMI Blog2019 (4) TMI 1964X X X X Extracts X X X X X X X X Extracts X X X X ..... mply with condition of exemption that led to debit of the duty. The consequent restoration the credit, on the basis of duly endorsed ARE-1s, does not appear to have the sanction of Rules. The sole circumstance in which suo motu credit can be recorded did not prevail when respondent reversed the debit. In the absence of legal provision for restoration, the action of the respondent does not have authority of law. The respondent herein was an exporter and the factum of exports is not in dispute. The eligibility for refund of the CENVAT credit, debited towards the payment of duty on immediate inability to establish evidence of export, is also not in dispute. Furthermore, the respondent had been at pains, as pointed out by the first appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory and to be evidenced by submission of duly endorsed ARE-1s and it was informed that, on failure to render such documentation in twenty four consignments, removed between 31st March 2006 and 15th June 2007, duty liability of ₹ 49,81,906 was duly debited by them and incorporated in the prescribed returns. 3. Admittedly, proof of export, received between 14th February 2007 and 12th March 2009, was accepted by the jurisdictional Assistant Commissioner between 29th November 2007 and 24th December 2010 following which the duty debited earlier was re-credited. The proceedings initiated against the respondent culminated in confirmation of the recovery by the original authority who placed reliance on the decision of the Larger Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for refund, when excess duty was paid. The conflict of views entailed the following reference to a Larger Bench of the Tribunal:- If an assessee avails suo motu 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) E.L.T. 220 will apply or the views taken by the Tribunal in the case of Motorola India Pvt. Ltd. - 2006 (193) ELT 468 (Tri.) = 2007 (7) S.T.R. 613 (Tri.) = 2005 (71) RLT 334 will apply . The Tribunal answered the reference holding that all types of refund have to be filed under the Central Excise Act and Rules made thereunder and no suo motu credit of the duty paid in excess may be taken by the assessee. We find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstance in which suo motu credit can be recorded did not prevail when respondent reversed the debit. In the absence of legal provision for restoration, the action of the respondent does not have authority of law. The decision in re CEAT Ltd, and the other decisions referred to therein, pertains to of availment of MODVAT credit which were operated under the erstwhile Central Excise Rules, 1944. Furthermore, the distinction of the facts and circumstances in the reference for constitution of the Larger Bench in re BDH Industries Ltd was relevant for determination of the dispute in re CEAT Ltd. 7. The respondent herein was an exporter and the factum of exports is not in dispute. The eligibility for refund of the CENVAT credit, debited towa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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