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2016 (11) TMI 472 - CESTAT BANGALORE

2016 (11) TMI 472 - CESTAT BANGALORE - TMI - 100% EOU - rejection of refund claim - Rule 5 of the Cenvat Credit Rules 2004 - the appellant has submitted that their unit had closed its manufacturing activity during August 2005 itself. Since they are not manufacturing and clearing any product on payment of duty, they are not able to utilise the CENVAT account. Therefore they have prayed that the amount be refunded to them in cash only. - Held that: - The jurisdictional High Court of Karnataka .....

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e 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’ble Supreme Court - the impugned judgment is not sustainable in law and is hereby set aside by allowing the a .....

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hich he has upheld the Order-in-Original and rejected the appeal of the appellant. Briefly the facts of the present case are that the appellant (formerly known as Solectron Centrum Electronics Ltd.) are undertaking the business of manufacturing electronic goods such as hybrid micro circuits, resistors, etc. Appellants are operating DTA units as well as EHTP unit under 100% EOU scheme. The audit party vide Note No.243/2004 demanded the payment of duty to an extent of ₹ 22,21,477/- on the ob .....

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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. Aggriev .....

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the learned Commissioner(A) has totally ignored the decision of the Hon ble Karnataka High Court in the case of UOI vs. Slovak India Trading Company Pvt. Ltd. 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 (201) E.L.T. 559 (Kar.) affirmed in 2008 (223) E.L.T. A170 (SC) b) CCE V. Apex Drugs & Intermediaries Ltd. 2015 (322) E.L.T. 834 (A.P) c) CCE V. Apex Drugs & Intermediarie .....

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lowing 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 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 circu .....

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t 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 out of the Modvat Scheme. In these circumstances, we answer all the three questions as framed in para 17 against the Revenue and in favour the assessee. 4. The learned counsel fu .....

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eme, 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 judgment of the Karnataka High Court which was affirmed by the Supreme Court and the same has been relied upon by the Tribunal in the case of CCE, Hyderabad Vs. Apex 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 fo .....

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other hand the learned AR reiterated the findings of the Commissioner (Appeals) and submitted that on closure of the business of the appellant, the unutilized cenvat credit would lapse and in support 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 .....

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d in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the cenvat credit in respect of the input or input 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 .....

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985 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 closed its manufacturing activity during August 2005 itself. Since they are not manufacturing and clearing any product on payment of duty, they are not able to utilise the CENVAT account. Therefore they have prayed that the amount be refunded to .....

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ent 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 bl .....

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