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2021 (9) TMI 1478 - AT - Central ExciseRefund of unutilised CENVAT credit on closer of factory in the form of cash, for which no provision exist in the CENVAT Credit Rules vis a vis Section 11 of the Central Excise Act - divergent judicial decisions are available in all hierarchy of Courts where tax disputes are decided including that of the Apex Court - applicability of binding judicial precedent that would govern the field than the statutory enactments - Difference of opinion. HELD THAT:- On the point of application of binding precedent for the Tribunal vis-à-vis revisiting to the legality of the issue involved and applicability of stare decisis, there emerged certain difference of opinion between learned Member (Judicial) and learned Member (Technical). To settle the issues and give finality to the divergent opinion emerged, the Registry is directed to place the matter before the Hon’ble President. The following points are required to be settled to give a finality to the issue:- i. Whether the decision of the Hon’ble High Court of Karnataka in case of Slovak India Trading Co Pvt, [2006 (7) TMI 9 - KARNATAKA HIGH COURT] and affirmed by the Hon’ble Supreme Court in [2007 (1) TMI 556 - SC Order], is applicable to the facts of the case in hand as held by Member (Judicial); or The decision of the Hon’ble Karnataka High Court is clearly distinguishable and not applicable to the facts of the case as held by Member (Technical) ii. Whether the order passed by the Hon’ble Supreme Court is to be accepted as binding precedent in view of KUNHAYAMMED AND OTHERS VERSUS STATE OF KERALA AND ANOTHER [2000 (7) TMI 67 - SUPREME COURT] read with GANGADHARA PALO VERSUS REVENUE DIVISIONAL OFFICER [2011 (3) TMI 252 - SUPREME COURT] in view of operation of Article 141 of the Constitution of India irrespective of the merger or no merger of the judgment of Hon’ble High Court with the judgment of the Hon’ble Supreme Court; or CESTAT is bound to follow the decision of the larger Bench of CESTAT ( in the case of Steel Strips [2011 (5) TMI 111 - CESTAT, NEW DELHI] and larger Bench of the Hon’ble Bombay High Court (Jurisdictional High Court) in the case of Gouri Plastic Culture [2019 (6) TMI 820 - BOMBAY HIGH COURT] which has dealt with the findings of Kunhayammed. iii. After the decision of the Hon’ble Supreme Court in case of Mafatlal Industries [1996 (12) TMI 50 - SUPREME COURT], and subsequent decisions, can CESTAT which is an authority created under the statute, decide any claim of the refund in terms of Rule 5 of CENVAT Credit Rules, 2004, filed for the reason beyond the reason of export of goods under bond. Member (Judicial) has held in favour of appellant and Member (Technical) has held in negative. iv. Whether the decision of the Hon’ble Karnataka High Court will hold goods after amendments made in the Rule 5 of CENVAT Credit Rules, 2004 in the year 2012, Member (Judicial) has held in favour of the Appellant while Member (Technical) disagrees and holds that the refund claim needs to be filed and adjudged as per the provisions of Rule 5 as they existed when the refund claim was filed. v. Whether the refund claim is barred by limitation, Member (Judicial) has not dealt with the issue as not in adjudication order whereas Member (Technical) has held the refund claim to be hit by limitation. vi. Whether the larger Bench orders of the Tribunal passed in the case of Mira Silk Mills Vs. Commissioner of Central Excise, Mumbai [2003 (3) TMI 142 - CEGAT, NEW DELHI] and Atma Steel Private Limited and others Vs. Collector Central Excise, Chandigarh and others [1984 (6) TMI 60 - CEGAT, NEW DELHI] on the application of binding precedent is to be followed by the Tribunal to arrive at a conclusion as held by the Member (Judicial); or Observation of the larger Bench of the Hon’ble Bombay High Court upon non-application of Article 141 in the context of the findings of the Hon’ble Supreme Court is to be followed by this Tribunal, as held by the learned Member (Technical) though ratio of the judgment in Gangadhar Pal had not been brought to the knowledge of the Hon’ble Bombay High court. vii. Whether legality of the issue involved in the present appeal concerning cash refund upon closer of factory can be revisited after the same is given a finality by the Hon’ble Supreme Court with a reason, may be meager, in confirming the order of the Hon’ble Karnataka High court, which is opined in the negative by the Member (Judicial) and In the affirmative and in express analysis of the provisions of the relevant Act and rules by the Member (Technical).
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