TMI Blog2013 (8) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... envat credit account, the unit was functioning 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 – assessee is eligible to receive the refund in cash - Decided in favor of assesse. - Appeal No.E/563/2011 - - - Dated:- 30-11-2012 - MR.M.V. RAVINDRAN, J. For the Respondent: Shri Manoj Kutty, A.R. JUDGEMENT Per: M.V. Ravindran: This appeal is directed against Order-in-Appeal No. SKSS/295/ DMN/VAPI-I/2010-11, dt.10.12.2010. 2. The facts of the case, in brief, are that the appellant M/s Ramji Packaging Pvt.Ltd. filed refund claim of Rs.63,25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion certificate filed with the Range Supdtt. On 01.04.2011, and acknowledgement thereof, application in prescribed form under Rule 113 of Gujarat Factory Rules, 1953 regarding information of closure of factory, letter informing Superintendent of Central Excise, regarding shutting down of the unit. They have also relied upon the decision of the Tribunal in the case of Kochar Sung-up Acrylic Ltd 2010 (259) ELT 713 (Tri-Del), for the proposition that once the factory is closed and if the refund is due to the assessee, the same should be paid for cash refund. 5 .Ld. D.R., on the other hand, would submit that there is no appealable order in this case as the first appellate authority has held in favour of the assessee. It is his submission that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Tribunal in the case of Kochar Sung-up Acrylic Ltd (supra) would apply in this case. With respect, I reproduce the said decision in its entirety. 1.1 The respondent are manufacturers of Acrylic Mink Blankets chargeable to Central Excise Duty under sub-heading 6001.92 and 6301.40 of the Central Excise Tariff and Acrylic carpets chargeable to Central Excise Duty under sub-heading 5703.90 of the Tariff. The Additional Commissioner vide order-in-original dated 31-7-2000 passed in respect of the show cause notice dated 29-9-98 issued to them, partially dropped the proceedings. However, on a review appeal being filed by the Department against the Additional Commissioner s order, the Commissioner, Central Excise (Appeals), vide order-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 account. 1.2 In the meantime, the Department reviewed the Assistant Commissioner s order dated 13-11-06 sanctioning the refund claim in cash and filed the review appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide order-in-appeal No. 213/C.E./Appl/Jal/2008 dated 24-4-2008 dismissed the department s appeal holding that in this case, the refund has been rightly given to the respondent in cash, as at that time, the respondent had alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel 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.L.T. 507 (Tri. -Mumbai) and Supreme Industries Ltd. v. CCE, Mumbai-V reported in 2008 (226) E.L.T. 354 (Tri. - Mumbai). He emphasized that since by the time, the matter was decided partially in favour of the respondent, as a result of which some amount of duty initially paid through Cenvat credit account became refundable, the respondent s factory had closed down and even the registration certificate had been surrendered, the amount of refund was required to be san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuation 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 payment of refund by cheque/cash in the cases where the original payment of duty was through the Modvat/Cenvat credit account and the assessee s factory had to closed down and there was no Cenvat credit account into which the refund amount could be credited. Same view has been taken by the Tribunal in the cases of Tablets India Ltd. v. CCE, Pondicherry reported in 2006 (197) E.L.T. 449 (Tri.-Chennai) =2008 (9) S.T.R. 313 (T) and also in the case of CCE, Ahmedabad-I v. Arcoy In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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