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2016 (6) TMI 316 - CESTAT NEW DELHI

2016 (6) TMI 316 - CESTAT NEW DELHI - TMI - Entitlement for refund claim - Rule 5 of Cenvat Credit Rules - Unutilized accumulated credit as on the date of their opting for the benefit of an exemption Notification No. 30/2004-CE dated 01/4/2006 which prohibited the availment of Cenvat credit - Held that:- There is no provision either in the Cenvat Credit Rules or under the Central Excise Act allowing cash refund of such accumulated credit. Such cash refunds of the credit, which is meant for only .....

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show us, we find no justifiable reasons to grant the refund of the said credit. - Decided against the appellant - Excise Appeal No. 2582 of 2007 - Final Order No. 51831/2016 - Dated:- 17-5-2016 - MS. ARCHANA WADHWA, MEMBER (JUDICIAL) AND SHRI B. RAVICHANDRAN, MEMBER (TECHNICAL) For the Petitioner : Shri Ankit Totuka, Advocate For the Respondent : Shri M.R. Sharma, Authorized Representative (Jt. CDR) ORDER PER. ARCHANA WADHWA :- The appellants are engaged in the manufacture of Textured Yarn an .....

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stands availed by them. The appellant continued to avail Notification No. 29/2004-CE and continued to take the Cenvat credit of duty paid on the inputs received by them till 01/4/2006, when they decided to shift to Notification No. 30/2004-CE. Accordingly, w.e.f. 01/4/2006 they started clearing their final product without payment of duty. 2. At the time of opting of Notification No. 30/2004-CE, the appellant was having certain inputs in their factory, in respect of which they reversed the Cenvat .....

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he Adjudicating Authority observed that the said rule is applicable only to the refund of accumulated credit, in case of export of final product. In as much as the appellants final product was not being exported, the invocation of the said rule is inappropriate. 3. On appeal against the said order Commissioner (Appeals) rejected the appeal and upheld the impugned order of the Original Authority. Hence, the present appeal. 4. After hearing both the sides, we find that the legal issue involved is .....

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d Cenvat credit. His only reliance is to the provisions of Rule 5 of the Cenvat Credit Rules, which he fairly admits that are applicable only in case of export of the final product. 5. As per the Cenvat Credit Scheme, credit of duty paid on the inputs and used in the manufacture of the final product is admissible for further use of the said credit for discharge of duty on the final product. There is no provision either in the Cenvat Credit Rules or under the Central Excise Act allowing cash refu .....

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nce of any such rule or provision of law, which learned Advocate has also been unable to show us, we find no justifiable reasons to grant the refund of the said credit. 6. Learned Advocate has strongly relied upon the Honble Karnataka High Court decision in the case of Union of India vs. Slovak India Trading Co. Pvt. Ltd. reported as 2006 (201) E.L.T. 559 (Kar.). By observing that Rule 5 of Cenvat Credit Rules does not expressly prohibited refund of unutilized credit when the Assessee factory w .....

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ts of the issues but had dismissed the appeal only on the ground that there was no appeal by Revenue previously on similar cases. But it has been held by Apex Court in the case of CCE, Raipur vs. Hira Cement reported in 2006 (194) E.L.T. 257 (S.C.) = 2007 (8) S.T.R. 96 (S.C.) that non-filing of an appeal against an order in any event would not be a ground for refusing to consider the matter on its own merit. Merely because in some cases revenue has not preferred appeal that does not operate as a .....

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rsy remained unanswered on the point of law while grant of refund of the nature claimed was not mandate of the Act or the 1994 Rules. The issue, therefore is rightly called for consideration in the present reference on the point of law . Policy of Refund of Input Credit is Regulated by Statutory Provisions Learned Advocate for the appellant submits that at the time Larger Bench decision was given, the Hon ble Karnataka High Court decision was not upheld. At this stage learned Advocate also bring .....

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