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General Commodities Private Limited Versus Commissioner of Central Excise

2016 (7) TMI 653 - CESTAT BANGALORE

Claim of refund after surrender of registration certificate - un-utilized cenvat credit - export of goods - Held that:- there is no express prohibition in terms of Rule 5 - refund allowed - Decided in favor of assessee. - E/2570/2010-SM - Final Order No. 20538/ 2016 - Dated:- 12-7-2016 - SHRI S.S. GARG, JUDICIAL MEMBER Shri N. Anand, Advocate, For the Appellant Shri Ajay Saxena, AR, For the Respondent ORDER Per: S.S. GARG This appeal is directed against the Order of the Commissioner (Appeals) da .....

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holder i.e. Star Export House under Foreign Trade Policy. In terms of para 3.7.7 of the FTP, the additional customs duty/excise duty paid in cash or through debit under the Target Plus shall be adjusted as cenvat credit or duty drawback as per rules framed by the Department of Revenue. During the month of June 2009 appellant closed their operations relating to manufacture and surrendered their registration certificate vide their letter dated 24.06.2009 and thereafter filed application for refund .....

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ted the refund and confirmed the adjudication order. Hence the present appeal. 2. The learned counsel for the submitted that the impugned order is not sustainable in law as the same has been passed merely on technicalities and without considering provisions of refund in accordance with law and the judgments of the various judicial fora. In support of his submissions, the learned counsel for the appellant relied upon the following decisions: a) Union of India V. Slovak Trading Co. Pvt. Ltd. 2006 .....

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vak Trading Co. Pvt. Ltd. cited supra analysed Rule 5 of the Cenvat Credit Rules 2002 (which is identically worded to Rule 5 of the Cenvat Credit Rules 2004) and answered the following substantial question of laws, which are impugned in the instant case also: 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 circu .....

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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, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed that various case laws in which similar claims were allowed. The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light of the assessee coming .....

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Rules did not expressly prohibited refund of unutilized cenvat credit where there was no manufacture due to closure of factory. Moreover since the assessee has come out of modvat scheme, refund of unutilized cenvat credit had to be made as per Section 11B of the Central Excise Act. The learned counsel further submitted that the judgments of the Karnataka High Court which was affirmed by the Supreme Court has been relied upon in the case of CCE, Hyderabad Vs. Apex Drugs & Intermediates Ltd. r .....

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t of his submission he relied upon the following authorities: a) Purvi Fabrics & Texturise (P) Ltd. Vs. CCE, Jaipur-II 2004 (172) E.L.T. 321 (Tri.-Del.) b) Purvi Fabrics & Texturise (P) Ltd. Vs. CCE, Jaipur-II 2015 (319) E.L.T. 551 (S.C) c) Modipon Ltd. Vs. CCE, Ghaziabad 2015 (324) E.L.T. 718 (Tri.-Del.) d) Nav Durga Steel Products Vs. CCE, Chandigarh 2014 (309) E.L.T. 302 (Tri.-Del.) e) Steel Strips Vs. CCE, Ludhiana 2011 (269) E.L.T. 257 (Tri.-LB) 4. I have heard the learned counsel f .....

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t service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of, (i) Duty of excise on any final product cleared for home consumption or for export on payment of duty, or (ii) Service tax on output service, and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Centra .....

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