TMI Blog2017 (12) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... r. D. M. Misra, Member (Judicial) For the Appellant : Mr. V. Kansara (Advocate) For the Respondent : Mrs. Nitina Nagori (A.R.) ORDER Per: Dr. D.M. Misra Heard both the sides. 2. This is an appeal filed against order in appeal No. KS/324/SRT-II/2009passed by the Commissioner of Central Excise (Appeals) Surat-II. 3. Briefly stated facts of the case are that the appellant had filed two refund claims amounting to ₹ 28,33,555/- and ₹ 8,06,732/- of cenvat credit reversed earlier on the insistence of the Department, later as the issue was decided in their favour, accordingly, they filed the refund claims. The refund claimswere rejected by the adjudicating authority and aggrieved by the said order they fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Vs CCE, Jaipur-I - 2016-TIOL-1915-CESTAT-DEL , similar circumstances, relating to eligibility of refund of credit availedunder Notification No.29/2004-CE and later switching over to exemption Notification No.30/2004-CE, following the principle laid down in Steel Strips case held that refund in cash cannot be admissible. 6. The short question involved in the present case for determination is: whether the appellant are entitled to refund of Cenvat Credit amount in cash when the credit was reversed on the insistence of the DGCI Officers as their factory has now been closed. I find that to resolve the conflicting opinions on the subject a reference was made to the Larger Bench in Steel Strips Case (supra). The Larger Bench formula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash, mere plea was raised by the assessee that Modvat credit having been remained unutilized at the time when the unit became inoperative and there was no possibility of restarting process in the factory, refund thereof was permissible relying on the decision of Hon ble High Court of Karnataka in the case of UOI v. Slovak India Trading Co. (P) Ltd. - 2006 (201) E.L.T. 559 (Kar.) = 2008 (10) S.T.R. 101 (Kar.). According to the Assessee, Rule 5 of the Central Excise Rules, 2002 was invokable on the ground that the decision of Hon ble High Court of Karnataka was confirmed by the Apex Court. But the Referring Bench observed that substantive provision of the statute in respect of refund was not subject matter of scrutiny in the said judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. 2. On the aforesaid background, the Referring Bench was of the honest belief that the decision of the Larger Bench in Gauri Plasticulture (P) Ltd. (supra) was an impediment to arrive at a conclusion contrary to the decision made in that case. Thus, this reference arose for answer by the Larger Bench on the question depicted at the outset. 7. Thereafter analyzing the issue and the principle of law laid down in this regard including the judgment of the Hon ble Karnataka High Court in Slovak India, it has been observed as follows: 5.16 Modvat law has codified procedure for adjustment of duty liability against Modvat Account. That is required to be carried out In accordance with law and unadjusted amount is not expressly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble High Court would prevail, in case of dispute with the Tribunal's decision but we find that Larger Bench decision of the Tribunal, which has resolved the disputed issue in favour of the Revenue, was duly aware of the Hon'ble Karnataka High Court decision, as confirmed by the Hon'ble Supreme Court. As such, the Larger Bench decision stands given by considering the Hon'ble Karnataka High Court, and subsequent confirmation of the same by the Hon'ble Supreme Court. Further, Tribunal being a creature of the Statute cannot go beyond the provisions of the Act and can't exercise power which are not available to it like writ jurisdiction powers. Judicial discipline requires us to follow the law declared by the Larger B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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