TMI Blog2017 (3) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/2016 - Dated:- 1-12-2016 - Shri Madhu Mohan Damodhar, Member (Technical) Shri Joseph Prabakar, Advocate, For the Appellant Shri L. Paneerselvam, AC (AR), For the Respondent Order Issue in appeal relates to denial of refund claim filed by the appellant on 18.7.2013 for an amount of ₹ 40,51,961/- under Rule 5 of Cenvat Credit Rules, 2004 and Notification No.27/2012-CE (NT) dt. 18.6.2012 on the ground that cenvat credit taken could not be utilized by them. Original authority disallowed the claim on the grounds that the claim had been filed after a lapse of one year after the date of which the goods have been exported. On appeal, Commissioner (Appeals) vide its order dated 21.12.2015 upheld the order of lower author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Appellate Authority dated 21.12.2015. ... ... ... 5. The petitioner need not have any apprehension in this regard. Even at the first instance, in their reply dated 26.11.2013, to the show cause notice dated 10.10.2013, they have set out averments regarding the closure of their manufacturing activities and those averments were referred to by the Original Authority in paragraph No.5 of its order dated 24.3.2014. Accordingly, the appellants are before this forum. 2. Today on the date of hearing, Ld. Advocate Shri Joseph Prabhakar, appearing for the appellant, submitted that the refund claim was in fact filed only for accumulated credit owing to closure of the factory. However, as there was no procedure for claimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gement of Hon ble High Court of Karnataka in the case of UOI Vs Slovak India Trading Co. P. Ltd. - 2008 (10) STR 101 (Kar.) wherein the Hon ble High Court held that the Tribunal was right in ordering that refund of accumulated credit arising due to closure of factory is right and there was no express prohibition in Rule 5 of CCR 2002. He also pointed out that the said ruling had been confirmed by the Hon ble Supreme Court reported in 2008 (223) ELT A170 (SC) wherein SLP filed by department had been dismissed and submitted that the law is well settled in the matter. Ld. Advocate submitted that there is no express prohibition in terms of Rule 5 of the Rules and therefore refund claim for unutilized credit owing to closure is very elig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim for refund has been rejected on the ground that they are not conforming to the conditions laid down in Rule 5 of the Rules read with Notification No.27/2012-CE (NT). In fact, in my opinion, whether or not the appellant had effected exports prior to the closure of the factory, would not make any difference to a claim for refund which is filed on account of the closure of the factory. This is not a case where the appellants are still functioning, and refund claim of accumulated credit accrued due to exports has been filed belatedly. On the other hand, this is a situation where the appellant has closed down the factory, however, in the absence of any other provisions for claim of credit at the time of closure they filed refund claim, under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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