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2016 (1) TMI 1057 - CESTAT MUMBAI

2016 (1) TMI 1057 - CESTAT MUMBAI - 2015 (325) E.L.T. 205 (Tri. - Mumbai) - Refund of unutilised Cenvat credit - refund claim denied on the ground that in terms of Rule 11(2) of Cenvat Credit Rules, 2004, unutilised credit would lapse on closure of the unit - Held that:- Admittedly, in the present case the appellant has closed its unit and filed ER return claiming refund of unutilised Cenvat credit which he is entitled to as per Rule 5 of the Cenvat Credit Rules, 2004. The rejection of refund cl .....

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of two months from the receipt of the certified copy of the order. - Decided in favour of assessee. - E/1463/2010-Mum - Final Order No. A/2568/2015-WZB/SMB - Dated:- 14-8-2015 - Shri S.S. Garg, Member (J) Shri Rinkey Jassuja, Advocate, for the Appellant. Shri H.M. Dixit, AC (AR), for the Respondent. ORDER This appeal is directed against Order-in-Appeal No. SB/61/TH-I/2010, dated 28-4-2010 vide which the ld. Commissioner rejected the appeal of the appellant. 2. Briefly, the facts of the case .....

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heir excise registration certificate vide letter dated 15-5-2007 addressed to the Asst. Commissioner of Central Excise, Kalyan. Thereafter, the appellant filed a refund application claiming refund of unutilised Cenvat credit of ₹ 85974/-. The Asst. Commissioner had rejected the refund of the appellant vide order dated 19-10-2007 on the ground that in terms of Rule 11(2) of Cenvat Credit Rules, 2004, unutilised credit would lapse on closure of the unit. The appellant filed appeal before the .....

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refund but still rejected the same on the ground of non-submission of required documentary evidence. He further submitted that the appellant has filed the copy of ER return along with application for refund which clearly shows unutilised balance of Cenvat credit during the relevant period. In support of their claim of refund, the appellant has relied upon the decision of the Karnataka High Court in Slovak India Trading Co. P. Ltd. reported in 2008 (10) STR 101 (Kar.) = 2006 (201) E.L.T. 559 (Ka .....

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- Rule 5 ibid. [para 5] This decision was upheld by the Apex Court by dismissing the SLP of the department as reported in 2008 (223) E.L.T. A170 (S.C.). 4. The appellant also relied upon CCE Tirupati v. Kores (India) Ltd. [2009 (245) E.L.T. 411 (Tri.-Bang.) = 2011 (22) S.T.R. 361 (Tribunal)] wherein it has been held as under : Refund of Cenvat/Modvat - Unutilised credit lying with assessee on account of closure of factory - Well settled law that amount of credit lying unutilised on account .....

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E.L.T. 559 (Kar.) relied on], [para 5] 6. The appellant also relied upon CCE, Tirupati v. Kores (India) Ltd. (sic) - 2009 (247) E.L.T. 658 (Tri.-Mum.) wherein it has been held as under : Refund - Cenvat/Modvat - Refund of unutilised credit on the ground of closure of factory - Identical refund claim allowed by High Court of Karnataka in case of Slovak India Trading Co. Pvt. Ltd. [2006 (201) E.L.T. 559 (Kar.)] against which SLP dismissed by Supreme Court [2008 (223) E.L.T. A170 (S.C.)] - Ref .....

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Credit Rules, 2004 which is reproduced herein : RULE 5. Refund of CENVAT Credit. - (1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by .....

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the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking; (D) Export turnover of services means the value of the export service calculated in the following manner, namely : - Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any per .....

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all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed. (2) This rule shall apply to exports made on or after the 1st April, 2012 : Provided that the refund may be claimed under this rule, as existing, prior to the commencement of the CENVAT Credit (Third Amendment) Rules, 2012, within a period of one year from such commencement : Provided further that no refund of credit shall be allowed if the manufacturer or provider of .....

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