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2016 (11) TMI 472 - AT - Central Excise100% EOU - rejection of refund claim - Rule 5 of the Cenvat Credit Rules 2004 - the appellant has submitted that their unit had closed its manufacturing activity during August 2005 itself. Since they are not manufacturing and clearing any product on payment of duty, they are not able to utilise the CENVAT account. Therefore they have prayed that the amount be refunded to them in cash only. Held that: - The jurisdictional High Court of Karnataka in the case of Union of India V. Slovak Trading Co. Pvt. Ltd. [2006 (7) TMI 9 - KARNATAKA HIGH COURT] has clearly held that there is no express prohibition in terms of Rule 5. The Hon’ble High Court has observed that the Tribunal is fully justified in ordering refund partly in the light of the closure of the factory and in the light of the assessee coming out of modvat scheme and this judgment of the Hon’ble High Court was affirmed by the Hon’ble Supreme Court. Further the judgment of the Hon’ble High Court has been followed in number of cases by various Tribunals as cited supra. On the other hand the judgments relied upon by the learned AR is not applicable in the facts and circumstances of the present case when the jurisdictional High Court has allowed the refund of unutilized cenvat credit under Rule 5 of the Cenvat Credit Rules 2004 and the same has been affirmed by the Hon’ble Supreme Court - the impugned judgment is not sustainable in law and is hereby set aside by allowing the appeal of the appellant with consequential relief of interest to be quantified and paid by the adjudicating authority - appeal allowed.
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