TMI Blog2016 (11) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... ss prohibition in terms of Rule 5. The Hon’ble High Court has observed that the Tribunal is fully justified in ordering refund partly in the light of the closure of the factory and in the light of the assessee coming out of modvat scheme and this judgment of the Hon’ble High Court was affirmed by the Hon’ble Supreme Court. Further the judgment of the Hon’ble High Court has been followed in number of cases by various Tribunals as cited supra. On the other hand the judgments relied upon by the learned AR is not applicable in the facts and circumstances of the present case when the jurisdictional High Court has allowed the refund of unutilized cenvat credit under Rule 5 of the Cenvat Credit Rules 2004 and the same has been affirmed by the Hon’ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (A) rejected the appeal vide order dated 25.7.2005. Thereafter appeal was preferred before CESTAT and CESTAT, Bangalore vide Final Order dated 4.8.2008 set aside the Order-in-Appeal. As a consequential relief of the final order of the Tribunal application was filed for sanctioning the refund which was claimed on 21.12.2004 along with interest. The Asst. Commissioner vide Order-in-Original dated 15.5.2009 out of the total sanctioned refund claim amounting to ₹ 4,21,477/- by way of cash rebate and ₹ 18/- lakhs by way of CENVAT credit and without sanctioning any interest on the refund amount claimed. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A), who rejected the appellant s appeal, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstances of the case the Tribunal is right in ordering for refund even if there is no production and there is no clearance of finished goods? c) Whether under the facts and circumstances of the case the Tribunal is right in holding that respondent is entitled for refund even if it goes out of Modvat Scheme or Company is closed? The High Court while answering the above questions of law in favour of the appellant held as follows: There is no express prohibition in terms of Rule 5. Even other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Drugs Intermediates Ltd. reported in 2014 (314) E.L.T. 729 and the same has been affirmed by the High Court of Andhra Pradesh reported in 2015 (322) E.L.T. 834 and has also been followed by the Bombay Bench of the Tribunal in the case of Century Rayon Twisting Unit Vs. CCE, Thane-I reported in 2015 (325) E.L.T. 205. The learned counsel for the appellant submits that the very same issue came up before this Tribunal in the case of General Commodities Pvt. Ltd. vs. CCE, Bangalore and this Tribunal vide its Final Order No.20538/2016 dated 12.7.2016 in appeal No. E/2570/2010 and it was held that the cash refund is eligible in the light of the closure of the factory. 5. On the other hand the learned AR reiterated the findings of the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Central Government, by notification; Provided that no refund of credit shall be allowed if the manufacturer or provider of output service avails drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1985 or claims rebate of duty under Central Excise Rules, 2002 in respect of such duty or claims rebate of Service Tax under the Export of Service Rules 2005 in respect of such tax. 6.1 In the present case, the appellant has submitted that their unit had cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of this he relied upon the judgment of the Hon ble Supreme Court in the case of Ranbaxy Laboratories vs. UOI reported in 2012 (27) S.T.R. 193 (S.C.) wherein in para 14 and 15 the Hon ble Supreme Court has held that Revenue is liable to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of the application for refund. Para 14 and 15 is of reference and are reproduced herein below: 14. At this stage, reference may be made to the decision of this Court in Shreeji Colour Chem Industries (supra), relied upon by the Delhi High Court. It is evident from a bare reading of the decision that insofar as the reckoning of the period for the purpose of payment of interest under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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