TMI Blog2012 (12) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferred in favour of M/s. Harshit Textiles Pvt. Ltd., there is no question of refund of this credit to the appellant. Their plea for cash refund of this credit to M/s. Harshit Textiles cannot be entertained as no such request has been made by M/s. Harshit Textiles before the lower authorities. - in favour of Revenue - E/542/2005 - A/400/2012-EX(BR)(PB) - Dated:- 30-3-2012 - Justice Ajit Bharihoke, Shri Rakesh Kumar, JJ. REPRESENTED BY : S/Shri B.L. Narasimhan with Hemant Bajaj, Advocates, for the Appellant. Ms. Renu Jagdev, AR, for the Respondent. [Order per : Justice Ajit Bharihoke, President (Oral)]. Appellants are manufacturing woollen fabrics and flex fabrics falling under Chapters 51 to 55 of the First schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but they have already sold out their unit to M/s. Harshit Textile Pvt. Ltd. Birla Nagar, Gwalior and M/s. Harshit Textiles Pvt. Ltd. Gwalior has already been permitted by the Commissioner, Central Excise, Indore under Rule 8 of the Cenvat Credit Rules, 2002 to take credit of inputs lying in account of M/s. Grasim Industries Ltd., Birla Nagar, Gwalior on account of transfer of ownership as communicated vide letter C. No. 1 (Gen)30-112/2003/CX/T/22812 dated 1-8-2003 of the Assistant Commissioner (Tech.) Central Excise Hqrs., Indore. 3. The adjudicating authority after giving due hearing to the appellant rejected the refund claim. The appellant preferred an appeal against the order of the adjudicating authority which was disallowed by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem in terms of the High Court order, the refund claim was in accordance with laws. They have made yet another plea that refund may be granted by way of credit to their other unit viz. Bhiwani Textiles Mills, Bhiwani. On examining this aspect, I find that the Appellants have accepted the fact that the Cenvat credit lying in their account has already been transferred to M/s. Harshit Textiles Pvt. Ltd., Gwalior to whom the unit was sold by them. In these circumstances, the adjudicating authority is correct in his observation that there was no glance in the name of the appellants, which could be granted as refund to the appellants. Since the request for transfer of the Cenvat credit to the transferee unit has already been granted by the Jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Counsel for the appellant submits that if cash refund is not permissible for any reason under law/rule through the transferee unit to someone else the cash refund should be given to the transferee unit. 5. Refuting the contentions, Ms. Renu Jagdev, learned AR submits that the accumulated credit cannot be refunded in view of Section 11B of the Central Excise Act, 1944. She further submits that since the appellant prior to moving the refund application has sold its unit and the credit lying in the account of the appellant had been transferred to the transferee unit, the refund either to the appellant or to the transferee unit is not permissible. 6. We have carefully considered the rival submissions and perused. 7. The appellant seeks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant refund, that is difficult to entertain except in the case of export. There cannot be presumption that in the absence of debarment to make refund in other cases that is permissible. Refund results in outflow from treasury, which needs sanction of law and an order of refund for such purpose is sine qua non. Law has only recognized the event of export of goods for refund of Modvat credit as has been rightly pleaded by Revenue and present reference is neither the case of otherwise due of the refund nor the case of exported goods. Similarly absence of express grant in statute does not imply ipso facto entitlement to refund. So also absence of express grant is an implied bar for refund. When right to refund does not accrue under law, clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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