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TMI Blog2006 (7) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal dated 9-8-2005 passed in Excise Appeal No. 934/2004 on the file of the Customs, Excise and service Tax Appellate Tribunal, Bangalore. (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 circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oices and the original copies of the invoices were never produced. The assessee had availed the credit to the tune of Rs. 3,09,390/-. On scrutiny, it was no 1 that there was neither production nor clearance of finished goods. Cenvat credit availed by the respondent is irregular. A show cause notice was issued in the matter with regard to irregular availment and also with regard to rejection of ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund and admitted facts would reveal of rejection at the hands of the Assistant Commissioner and also the appellate authority. The Tribunal has chosen to allow the claim application on the ground that refund cannot be rejected when the assessee goes out of Modvat scheme or when the Company is closed. The argument is that there is no provision for refund in terms of Rule 5 of Cenvat Credit Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims a rebate of duty under the Central Excise Rules, 2002, in respect of such duty." 5. There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. Admittedly, in the case on hand, there is no manufacture in the light of closure of the Company. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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