2006 (7) TMI 9 - HC - Central Excise

Central Excise - Refund - Cenvat/Modvat - Assessee made claim for unutilized credit when there was no manufacture in the light of closure of factory and he has come out of Modvat scheme - Refund of credit is admissible

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court are:

(a) Whether the Tribunal was correct in ordering a refund of unutilized Cenvat Credit despite the absence of any provision in Rule 5 of the Cenvat Credit Rules, 2002, authorizing such refund.

(b) Whether the Tribunal was justified in granting refund when there was no production or clearance of finished goods by the respondent.

(c) Whether the Tribunal was right in holding that the respondent was entitled to refund even though it had exited the Modvat scheme or the company had closed down.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a): Refund of Unutilized Cenvat Credit in Absence of Express Provision under Rule 5

Relevant legal framework and precedents: Rule 5 of the Cenvat Credit Rules, 2002, governs the refund of Cenvat Credit when inputs are used in final or intermediate products cleared for export. It provides that refund shall be allowed where adjustment of credit against duty payable is not possible, subject to safeguards and conditions notified by the Central Government. It also prohibits refund if drawback or rebate is claimed under specified rules.

Court's interpretation and reasoning: The Court observed that Rule 5 explicitly contemplates refund only in the context of manufacturers and export clearance. There is no express prohibition on refund outside these circumstances, nor is there an explicit provision authorizing refund in other scenarios. However, since the rule speaks in terms of manufacturers and export clearance, it does not apply to a case where the manufacturer has ceased operations or exited the Modvat scheme.

Key evidence and findings: The respondent-company had ceased manufacturing operations and surrendered its registration. The refund claim related to unutilized Cenvat Credit accumulated prior to closure.

Application of law to facts: The Court held that since Rule 5 refers to manufacturers and export clearance, and the respondent was no longer a manufacturer due to closure, the rule could not be invoked to reject the refund claim. The absence of an express prohibition in Rule 5 against refund under such circumstances meant that the Tribunal was justified in ordering refund.

Treatment of competing arguments: The Revenue argued that refund was not permissible as Rule 5 did not provide for it, but the Court rejected this, emphasizing the rule's limited scope and the factual context of closure.

Conclusion: The Tribunal was correct in ordering refund despite the absence of an express provision in Rule 5 permitting refund of unutilized Cenvat Credit in this factual matrix.

Issue (b): Entitlement to Refund Despite No Production or Clearance of Finished Goods

Relevant legal framework and precedents: Under the Central Excise law, Cenvat Credit is generally available on inputs used in manufacture of excisable goods, subject to conditions including production and clearance. However, the question arises whether refund of unutilized credit can be claimed when no production or clearance has occurred.

Court's interpretation and reasoning: The Court noted that the respondent had availed Cenvat Credit irregularly based on photocopies of invoices without production or clearance of finished goods. However, the Tribunal allowed refund on the ground that the company had exited the Modvat scheme and had closed down.

Key evidence and findings: The Internal Audit revealed irregular credit availed without production or clearance. The Revenue rejected refund on this basis. The Tribunal, however, observed that refund cannot be denied solely because there was no production or clearance if the company has ceased operations.

Application of law to facts: The Court agreed with the Tribunal that the absence of production or clearance did not disentitle the respondent to refund once it exited the Modvat scheme and closed down. The rationale is that unutilized credit should not be allowed to lapse or be forfeited merely due to cessation of operations.

Treatment of competing arguments: The Revenue contended that refund should be rejected due to irregular credit and no clearance, but the Court found that the closure and exit from Modvat scheme justified refund.

Conclusion: The Tribunal's order allowing refund despite no production or clearance was upheld.

Issue (c): Refund Entitlement Upon Exit from Modvat Scheme or Closure of Company

Relevant legal framework and precedents: The Modvat scheme (now replaced by Cenvat Credit Rules) allowed manufacturers to avail credit of excise duty paid on inputs. The question is whether refund of unutilized credit is permissible when the manufacturer exits the scheme or closes the business.

Court's interpretation and reasoning: The Court observed that Rule 5 contemplates refund for manufacturers continuing under the scheme but does not address closure or exit. The Tribunal relied on precedents where refunds were allowed in similar circumstances.

Key evidence and findings: The respondent had surrendered registration and ceased manufacturing. The Tribunal found that refund cannot be denied merely because the company is closed or has exited the scheme.

Application of law to facts: The Court agreed that the closure of the factory and exit from the Modvat scheme justified refund of unutilized credit, as the credit could not be otherwise utilized.

Treatment of competing arguments: The Revenue argued that refund was impermissible post closure, but the Court rejected this, emphasizing equitable considerations and the absence of statutory prohibition.

Conclusion: Refund was rightly allowed by the Tribunal despite closure and exit from Modvat scheme.

3. SIGNIFICANT HOLDINGS

The Court held:

"There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. Admittedly, in the case on hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal."

"The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light of the assessee coming out of the Modvat Scheme."

The core principles established include:

• Refund of unutilized Cenvat Credit is permissible even if Rule 5 of the Cenvat Credit Rules, 2002, does not expressly provide for it, especially when the manufacturer has ceased operations.
• Absence of production or clearance of finished goods does not automatically disentitle a claimant from refund of unutilized credit if the company has closed or exited the scheme.
• The closure of the factory and exit from the Modvat scheme justify refund to prevent forfeiture of legitimate credit.

Final determinations on each issue were in favor of the respondent, with all three questions answered against the Revenue and in favor of the assessee, leading to the allowance of the refund claim.