TMI Blog2009 (12) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit and that the unit, therefore; was not in a position to utilize to utilize any cenvat credit. Held that- as assessee had shifted their unit to place where they were availing hill area exemption and were not in position to avail credit. Refund of pre-deposit amount upheld. Since assessee had started to avail exemption at time of refund and were not able to utilize Cenvat Credit, such refund was meaningless for them. O grant of refund in cash, assessee had entitled to interest for delay in its grant. - E/251/2008-SM(BR) - 51/2010-SM(BR)(PB), - Dated:- 23-12-2009 - Shri Rakesh Kumar, Member (T) REPRESENTED BY: Shri Sansar Chand, DR, for the Appellant. Shri Anand Sukumar, Advocate, for the Respondent. [Order]. - This is Revenue's appeal against order-in-appeal No. 126-127/CE/DLH/2007 dated 16.11.2007. The facts leading to this appeal are, in brief, as under. 2. The appellant had paid amount of Rs. 1 lakh and Rs. 10 lakh as pre-deposit in pursuance of stay orders passed by the Tribunal. Both the pre-deposits made by debiting the RG-23A Pt.II account Rs. 10 lakh was debited on 30.10.95 and the amount of Rs. 1 lakh was debited on 14.1.2003. Subsequently, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter. The DR further pleaded that the amount of pre-deposit of Rs. 10 lakhs and Rs. 1 lakh as per the direction of the Tribunal has been paid by the respondent through the cenvat credit; that though subsequently the unit of the respondent located at Delhi had closed down, the unit has been shifted to Baddi where it is very much functioning; that on shifting of the unit to Baddi, the Assistant Commissioner vide letter dated 28.11.2006 addressed to the Assistant Commissioner, Central Excise Shimla had transferred cenvat/modvat credit for Rs. 4,00,000/- to the Baddi unit on the respondent's request, that since the respondent unit shifted to Baddi, they are still having the cenvat credit account, that the Assistant Commissioner has rightly credited the refund of pre-deposit to the cenvat credit account and that he relies upon the following judgement of the Tribunal and High Court wherein it was held that any amount, paid, through cenvat credit is to be refunded only through the recredit in the cenvat credit amount. (i) Rollatainers Ltd. vs. CCE, Jaipur- [2005 (183) ELT 38 (Tri.Del.)]; (ii) CCE, Chennai vs. Rajashree Cements - [2001 (132) ELT 724 (Tri.-Chennai)] (iii) Gauri Plas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a position to utilize these amounts; that in view of this, these amounts should have been refunded as cash, that he relies upon the judgements of the Tribunal in the cases of: (i) Kundalia Industries vs. CCE. Delhi -I - [2006 (196) ELT 312 (Tri. Del. )]; (ii) CCE, Kanpur vs. Deepti Chemicals (P) Ltd., -[2006 (201) ELT 423 (Tri. Del. )]; (iii) Slovak India Trading Co. Pvt. Ltd. vs. CCE, Bangalore - [2006 (205) ELT 956 (Tri. Bang.)] and (iv) Gauri Plasticulture (P) Ltd., vs. CCE, Indore- [2006 (202) ELT 199 (Tri. Mumbai)] that in these judgements it has been held that when initially duty was paid through cenvat credit, if at the time of refund, the unit was closed or is not in a position to utilize the cenvat credit, the refund has to be given in cash, that as regards the interest, the same is payable in view of Hon'ble Supreme Court's decision in the case of CCE, Hyderabad vs. ITC Ltd.. reported in 2005 (179) ELT 15 (SC) which has been rightly relied upon by the Commissioner (Appeals) and that the same view has been taken by this Tribunal in the case of Globe International Agencies vs. CC, Chennai -2006 (206) ELT 720 (Tri. Chennai), Continental Petroleum Ltd., vs. CC, Ahm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund should have been made in cash and not by way of recredit in the cenvat credit account. I find that in the judgement of the Tribunal in the case of CCE vs. Rajashree Cements (supra) and Rollatainers Ltd., vs. CCE, Jaipur (supra) cited by the learned DR, the Tribunal had upheld the grant of refund by way of recredit to the cenvat credit account on the ground that initially the duty had been paid through cenvat credit account and unit is still functional and it was not the plea of the assessee that their unit is closed and not in a position to utilize the cenvat credit. In the case of Kandhari Beverages Ltd., (supra) cited by the learned DR, Hon'ble Punjab Haryana High Court had ordered the refund of pre-deposit alongwith interest to be credited to the cenvat credit account of the petitioner but in this case also I find that it was not the plea of the petitioner that they are not in a position to utilize the cenvat credit account and that the refund should be made in cash. The order of the Hon'ble High Court passed in this case was on equitable considerations and issue as to whether the refund should be given in cash or through the cenvat credit account, had not been conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has started availing full duty exemption under the hill area exemption notification. Thus, since the respondent on shifting to Baddi are availing hill area exemption and are not in a position to avail cenvat credit, in my view the Commissioner (Appeals) has correctly ordered grant of refund through cash. 5. As regards the second issue regarding interest for the period of delay beyond three months from the date of filing of refund application I find that the Commissioner (Appeals) in this regard has relied upon the judgement of the Hon'ble Supreme Court in the case of ITC Limited (supra) wherein Hon'ble Supreme Court has in clear terms held that the interest of the refund of pre-deposit is available for the period of delay from the three months after the date of final disposal of the dispute. Though the learned DR pleads that the refund have been sanctioned by the Assistant Commissioner by recrediting the amount to the cenvat credit account, since as discussed above, the respondent is not in a position to utilize the cenvat credit, ordering the refund by way of recredit to the cenvat credit account was meaningless. The refund can be treated having sanctioned only when the same was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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