TMI Blog2010 (8) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... ctioning and by the time the matter was decided by the Tribunal partly in the favour of the respondent, which resulted in refund and the refund was sanctioned, the unit had closed down and even the registration certificate had been surrendered – no merit in the Revenue's appeal – Appeal dismissed - E/1732/2008-SM - 985/2010-SM(BR)(PB) - Dated:- 25-8-2010 - Shri Rakesh Kumar, Member (T) REPRESENTED BY : Shri S.K. Bhaskar, DR, for the Appellant. Shri R.K. Hasija, Advocate, for the Respondent. [Order]. - The facts giving rise to this appeal filed by the Revenue are, in brief, as under. 1.1The respondent are manufacturers of Acrylic Mink Blankets chargeable to Central Excise Duty under sub-heading 6001.92 and 6301.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid in cash. The respondent filed a refund claim for Rs. 1,54,155/- on 10-10-06. The Assistant Commissioner, however, vide order-in-original dated 13-11-06 sanctioned the refund through cheque. In the meantime, the respondent's factory has closed down and on 28-4-06, the respondent had surrendered their registration certificate. Thus, the refund was sanctioned to them by the Assistant Commissioner after the surrender of the registration certificate by the respondent. On 21-6-07, department issued a show cause notice for recovery of the refund amount on the ground that since the duty had been paid through Cenvat credit account, its refund could not be made in cash and should have been given to the respondent by credit to the Cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 2006 (202) E.L.T. 199 (Tri. - LB) pointing out para 8 and 9 of the judgment in support of his contention that the refund of the duty paid through Cenvat credit account cannot be given in cash. He also pointed out that during the period of dispute, the respondent had huge amount of unutilized Cenvat credit and had paid the duty voluntarily through Cenvat credit only to utilize the accumulated Cenvat credit. 2.2 Shri R.K. Hasija, Advocate, the learned Counsel for the respondent, pleaded that there is no provision prohibiting the refund of the duty paid through Cenvat credit account in cash and in this regard he relied upon the judgments of the Tribunal in the cases of CCE, Ahmedabad-I v. Arcoy Industries reported in 2004 (170) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh credit to the Cenvat credit account and if the unit is functioning, as per the practice, the refund of the duty initially paid through Cenvat credit is made by credit to the Cenvat credit account. However, the situation would be different if by the time, the refund arises and is sanctioned, the assessee's factory closes down and even the registration certificate has been surrendered and a result of which there is no Cenvat credit account with the assessee. In such a situation giving the refund through the credit in the Cenvat credit account would be meaningless. I find that the Tribunal in the case of Commissioner v. Bombay Burmah Trading Corp. Ltd. - 2005 (190) E.L.T. 40 (Tribunal) has held that there is no bar under Section 11B for pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
