TMI Blog2008 (8) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... S.L. Peeran, Shri T.K. Jayaraman, JJ. REPRESENTED BY : Ms. Sudha Koka, SDR, for the Appellant. Shri V.J. Sankaram, Advocate, for the Respondent. [Order per : T.K. Jayaraman, Member (T)]. Revenue has filed this appeal against the Order-in-Appeal No. 5/2008-C.E., dated 17-1-2008 passed by the Commissioner of Central Excise and Customs (Appeals), Guntur. 2. Ms. Sudha Koka, the learned SDR appeared for the Revenue and Mr. V.J. Sankaram, the learned Advocate, appeared for the respondent. 3. The issue is like this. The respondents took Cenvat credit on capital goods to the extent of Rs. 15,03,931/-. Later they claimed refund of the amount which was in their RG 23C Part I/RG 23A Part II accounts on the ground that the factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision in the Cenvat Credit Rules or even Section 11B of the Central Excise Act to refund the amount unutilized and the refund amount which is in the balance in the Cenvat Credit account and which cannot be utilized, (ii) another point made by the Revenue is that the case-laws relied on by the Commissioner (Appeals) are distinguishable and they are not relevant to the facts of the present case. 5. The learned Advocate for the respondents also had relied on several case-laws to hold that the amount which is lying in the Cenvat credit account and which cannot be utilized on account of the closure of the factory is liable to be refunded. 6. On a very careful consideration of the entire issue, we find there is plethora of case-laws which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner : (a) Whether under the facts and circumstances of the case the Tribunal is right in ordering for refund even if there is no provision in Rule 5 of Cenvat Credit Rules, 2002, to refund the unutilized Credit? (b) Whether under the facts and circumstances of the case the Tribunal is right in ordering for refund even if there is no production and there is no clearance of finished goods? (c) Whether under the facts and circumstances of the case the Tribunal is right in holding that respondent is entitled for refund even if it goes out of Modvat Scheme or Company is closed? 8. For those questions, the Hon ble High Court has answered it saying that there is no express prohibition in granting the refund of the unutilize ..... X X X X Extracts X X X X X X X X Extracts X X X X
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