2018 (12) TMI 1417

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....ged in the manufacture of Neutra Simenthicone Emulsion and it exports the same under claim of rebate in terms of Rule 18 of Central Excise Rules read with Notification nom 19/2004-CE.(NT) dated 06809.2004. It claims for refund before the Asstt. Commissioner of Central excise, Nagpur but the same was rejected as time barred and not furnishing of ARE-1 as per para 8.3 of Chapter 8 of the CBEC Excise Manual of the Supplementary Instruction. Appellant had not challenged the same order but subsequently took suo motu recredit vide entry dated 31.07.2015 and 14.09.2015 after applying for permission through letters from the department for such recredit and after waiting for 1-1/2 years. The matter of recredit was subsequently intimated by the appel....

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....f incidence of tax has been exported for which he submitted that the order of the Commissioner (Appeals) is required to be set aside. 4. In response to the submissions made on behalf of the appellant, ld. DR for the department, through his written submission and during hearing of the appeal, submitted that when rebate claim was rejected by the adjudicating authority, in spite of filing an appeal before the appropriate authority against adverse order, the appellant has taken recredit in their cenvat account of such amount and as such there is no method available for the appellant to correct the failure or lapse on their part. He also pointed out that Cenvat Credit Rules 2004 allows availment of cenvat credit only on the basis of document pr....

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.... express provision available by which appellant can have authority to take suo motu cenvat credit and avail the same it would be beyond the jurisdiction of this Court to bring imaginary eventualities and give a finding that such an act of appellant is legal. With reference to the decision cited by the appellant concerning Madras CESTAT's finding, there is a maked distinction between the present case of the appellant and issue before the Tribunal in the sense that the appellant was a 100% EOU and before its rebate application was processed, it had requested the department to cancel the rebate claim accordingly re-credited the amount while in the instant case after rebate was disallowed on grounds of limitation etc., which attained finali....