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2019 (1) TMI 968 - AT - Central ExciseCash refund of unutilized credit - closure of factory - due procedure has been followed by the appellant by informing the department about such closure - denial of credit on the ground that the refund of unutilised credit is not admissible to the appellant by way of granting cash refund under the provisions of Rule 17 of Chewing Tobacco and Unmanufactured Tobacco Packing Machine Rules 2010 - Held that:- In the case of Delphi-TVS Diesel Systems Ltd. Vs. CESTAT, Chennai [2015 (9) TMI 774 - MADRAS HIGH COURT], it is held that rules being subordinate legislation, cannot prescribe anything different than prescribed in the Act, rules can occupy a field that is not occupied by Statute. The rule cannot occupy a field i.e. already occupied of the statute. In view of the above judgement, the Hon’ble High Court its very much intention that the ground taken by the first appellate authority to reject the refund scheme is not sustainable in the eyes of law. By application of aforesaid ratio in the present case, we find that by application of grant of refund inadmissible to the appellant needs to be refunded back to the appellant. We find that there are many decisions of the Tribunal as well as the superior Courts, that the Cenvat credit lying with the appellant is also a duty and cannot be treated separately as compared to the Revenue in PLA account. Thus, the appellant is entitled to refund of the Cenvat credit lying unutilised at the time of closure of their factory - appeal allowed - decided in favor of appellant.
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