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TMI Blog2013 (8) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The concerned authority vide its Letter F.No.IV/9-HPU-I/14/03-04, dt.10.12.2009 re-quantified the amount as Rs.12,82,883. The amount determined as per the Order-in-Original dt.19.02.2008 was Rs.13,46,140/-. The appellant paid the said amount of Rs.13,46,140/- and accordingly filed the refund claim for differential amount of Rs.63,557/-. The refund claim of Rs.63,557/- was sanctioned vide the impugned order dt.30.06.2010 by way of credit in CENVAT Credit account. 3. Aggrieved by such an order of the adjudicating authority, Revenue filed an appeal on the ground that the refund claim filed by the assessee is beyond the period of limitation. The first appellate authority, after considering the submissions made, came to conclusion that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is challenged by the appellant herein is rejecting the appeal filed by the Revenue against Order-in-Original. The said Order-in-Original has allowed the refund claim filed by the appellant herein, directing him to take credit in CENVAT account. The first appellate authority has also upheld the Order-in-Original which would indicate that the appellant should take the amount of refund in the CENVAT account as credit. The only grievance of the appellant herein is that the refund should be paid in cash by the Department as their unit is closed, in support of which they had enclosed a letter of surrender of registration certificate, closure of factory to be intimated as per the Gujarat Factory Rules. On perusal of the said documents, I find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al vide stay order No. S/1297/04-NB (SM) dated 24-11-04 directed the respondent for pre-deposit of Rs. 50,000/- under Section 35F of the Central Excise Act, which was deposited by the respondent vide TR-6 challan No. 4 dated 24-1-2005. Subsequently the respondent also debited an amount of Rs. 2,08,405/- towards the duty under protest vide entry No. 9 dated 30-3-06 in their Cenvat credit account. This duty had been confirmed in the order dated 23-3-04 passed by the Commissioner (Appeals). However, the Tribunal vide final order No. 1121/06-SM (BR) dated 19-7-06 [2007 (208) E.L.T. 284 (Tri.-Del.)] partly allowed the respondent's appeal and upheld the duty demand of only Rs. 52,125/- alongwith the equivalent penalty, as against the amount of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntative, assailed the impugned order reiterating the grounds of appeal in the Revenue's appeal. He pleaded that when the respondent had debited an amount of Rs. 2,08,405/- towards duty in their Cenvat credit account, they had done so without any instructions from the department and during the pendency of their appeal and that in view of these circumstances, when the duty had been paid by them through Cenvat credit account, its refund could be given only through Cenvat and the cash refund, ordered by the Assistant Commissioner is wrong even though by the time amount was refunded, the factory had closed down and the respondent had surrendered the registration certificate. He also cited judgment of Larger Bench of the Tribunal in the case of G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the submission from both the sides and perused the records. The only point of dispute in this case is as to whether the refund of duty initially paid through Cenvat credit account can be made in cash in a situation when by the time the duty amount had become refundable, the assessee's factory had closed down and the registration certificate had been surrendered. There is no prohibition either in the Central Excise Act and in the Rules made thereunder that refund of duty paid through Cenvat credit account cannot be made in cash. Section 11B of Central Excise Act, 1944 providing for refund of duty does not make any distinction between the duty paid in cash i.e. through PLA and the duty paid through Cenvat Credit account. The amount can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat while the Central excise registration certificate was surrendered by the assessee in September 2000, the debit entry in the Cenvat credit account for payment of duty was made in November 2000, that is, after the surrender of the registration and in such a situation observing that the unutilized Cenvat credit as on the date of the surrender of the registration, would in any case have lapsed, the Tribunal held that the refund of such duty cannot be allowed in cash. But this is not the position in this case. There is no dispute about the fact that when the duty was paid through Cenvat 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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