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2018 (10) TMI 1064 - HC - Central ExciseRefund/encashment of unutilized CENVAT credit account - Section 11B of the Act of 1944 - rejection of refund on the ground that statutory provisions neither provide for sanction of refund in cash nor do they permit an assessee to utilize the accumulated CENVAT credit of Education Cess and Secondary & Higher Secondary Education Cess paid on inputs or input services against payment of excise duty etc. Held that:- An assessee is required to pay duty provided in the Schedule I and Schedule II to the Central Excise & Tariff Act and he can claim refund of such duty by making an application under Section 11 B of the Act of 1944, if the same has been erroneously paid or illegally recovered subject; of course, to the procedure and conditions contained therein - The Act of 1944 does not contain any provision for refund of the Excise Duty or other levies payable under the Act, until and unless the same are proved to have been erroneously paid or recovered with a further proof that its burden has not been passed on to the customers. CENVAT credit lying in an assessee’s account creates an infallible and indefeasible right, which in the present case is indispensable and undeniable; however, to the extent of making payment of the corresponding cess, if any, payable on or after that date, as categorically stipulated in 1st and 2nd proviso to Rule 3 (7) (b) of the CENVAT Credit Rules, 2004. Since the CENVAT Credit Rules, the repository of rights of an assessee to avail credit of the duty or other sums paid on inputs does not entail or even envisage refund of such credit in cash and encashment cannot be claimed as a matter of course. It can also not be asserted that an assessee is entitled to or has an ingrained or vested right to claim refund of Education Cess and Secondary and Higher Secondary Education Cess or any other duty paid in accordance with the law dehors the CENVAT Credit Rules, 2004. Tribunal has committed no error of law in holding that the appellant cannot claim cash refund or encashment of the unutilized and unavailed amount of Education Cess and Secondary and Higher Secondary Education Cess, lying in its credit - appeal dismissed - decided against appellant.
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