2008 (5) TMI 206 - AT - Central Excise

Appellants submitted claim for refund of unutilised credit of Additional Excise Duty (Textiles and Textile Articles) lying in their RG-23A Part II account held that if no cash payment towards duty was made through PLA and the credit remained unutilised in the account books refund of such credit cannot be allowed by way of cash

Summary

Issues:
Claim for refund of unutilised credit of Additional Excise Duty (Textiles and Textile Articles) lying in RG-23A Part II account; Rejection of refund claim due to credit not lying in current account and lack of cash payment through PLA; Rejection upheld by Commissioner (Appeals) due to absence of formal order permitting transfer of credit; Rejection of refund claim post permission for transfer of credit; Review of earlier order by Commissioner (Appeals) in light of fresh permission for transfer of credit; Interpretation of legal provisions regarding refund of unutilized credit in cash.

Analysis:
The appellants, engaged in manufacturing yarns and fabrics, sought refund of unutilised credit of Additional Excise Duty (Textiles and Textile Articles) from their RG-23A Part II account. A show cause notice was issued proposing rejection of the refund claim on the grounds that the credit was not in their current account and no cash payment was made through PLA. The Assistant Commissioner held that the credit did not belong to the appellants but to another entity, and no cash payment was made. The Commissioner (Appeals) upheld the rejection, citing the absence of a formal order permitting transfer of credit due to a demerger scheme.

Post the Commissioner (Appeals) order, permission was granted for the transfer of unutilised credit to the appellant-company. However, the claim for refund was rejected on the basis that issuing a fresh order would amount to a review of the earlier decision. The issue was further analyzed in light of legal precedents and decisions. The Larger Bench decision stated that if no cash payment was made through PLA and the credit remained unutilised, refund in cash cannot be allowed. The appellants relied on a Karnataka High Court decision regarding refund of unutilized credit in cash, but the Tribunal found it misplaced as the appellants continued to operate under the Modvat scheme.

Considering the legal interpretations and precedents, the Tribunal held that there was no merit in the appeals and dismissed them accordingly, following the ratio of the Larger Bench decision. The judgment emphasized the importance of cash payment through PLA for refund eligibility and distinguished cases where assessees opted out of the Modvat scheme or when factories were closed, allowing for refund in cash.