2019 (4) TMI 1964

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.... of Rs. 49,81,906 availed suo motu. 2. Narrating the sequence of events, Learned Authorised Representative stated that the respondent, M/s ISMT Ltd, a manufacturer of 'seamless pipes', had been availing CENVAT credit of duties and taxes paid on inputs, capital goods and input services and that, on exports, clearances had been effected without payment of duty, in accordance with the procedure prescribed in notification no. 42/2001-CE (NT) dated 26th June 2001, as provided for in the rule 19 of Central Excise Rules, 2002. The conditions stipulated that the exports were to be completed within six months from the date of removal from the factory and to be evidenced by submission of duly endorsed ARE-1s and it was informed that, on failure to r....

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....ndustries Ltd. [2008 (229) E.L.T. 364 (Tri. - LB)]. In the said decision, the Tribunal had con-sidered two cases: (a) Motorola India Pvt. Ltd. [2006 (193) E.L.T. 468 (T) = 2007 (7) S.T.R. 613 (T) = 2005 (71) RLT 334] In this case the appellant had paid excess duty by mistake and thereafter sought permission to take credit of the amount paid by mistake. The Tribunal held that the amount involved was not duty and limitation did not apply for its refund. (b) Comfit Sanitary Napkins (I) Pvt. Ltd. - 2004 (174) E.L.T. 220. In this case it was held that the assessee cannot suo motu take credit without applying for refund, when excess duty was paid. The conflict of views entailed the following reference to a Larger Bench of the Tribunal:....

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....the amount paid was credited in their books. 6. Credit of duties/taxes paid can be taken, in accordance with rule 3 of CENVAT Credit Rules, 2004, on receipt of eligible 'inputs', 'capital goods', and 'input services' against documentation prescribed therein. The eligibility for such availment is not in dispute here. On the contrary, it is the failure to discharge of liability on 'output' by failure to comply 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 r....