TMI Blog2017 (4) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... see. - Appeal No. E/55702/2013-Ex [DB] - Final Order No. 52941/2017 - Dated:- 20-4-2017 - Hon ble Mr Justice (Dr) Satish Chandra, President And Hon ble Mr Ashok K. Arya, Member (Technical) Shri Anuj Sharma, Advocate for the Appellant Shri RK Manjhi, DR for the Respondent ORDER Per Ashok K. Arya The appellant M/s Welcure Drugs Pharmecauticals Ltd is in appeal against Order-in-Appeal No.186/2012 whereunder their refund claim of ₹ 1,34,45,987/- has been rejected. 2. The brief facts are that: (i) Appellant was manufacturing medicine, namely, Odoxin, which was governed by direct price control order. (ii) A duty of 4% was paid on Odoxin whereas input credit utilized in manufacture of Odoxin suffered a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished mainly on the premise that in absence of statutory mandate for refund, pleas of injustice, hardship or equity and good conscience cannot influence fiscal courts without the same being embedded in statutory provisions; absence of express grant is an implied bar for refund. The larger bench of the Tribunal in the said case inter alia observes as under: POLICY OF REFUND OF INPUT CREDIT IS REGULATED BY STATUTORY PROVISIONS 5.7 A distinction between provisions of status which are of substantive character and are built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in their nature, on the other, must be kept clearly distinguished. An eligibility criteria to get re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EMPTION ARE GOVERNED BY RULE OF STRICT COMPLIANCE 5.8 Fiscal statute generally seeks to preserve the need to comply strictly with regulatory requirements that are important, especially when a party seeks the benefit of an exemption clause that are important. Substantial compliance of an enactment is insisted, where mandatory and directory requirements are lumped tog ether, for in such a case, if mandatory requirements are complied with, it will be proper to say that the enactment has been substantially complied with notwithsta nding the non-compliance of directory requirement. In cases where substantial compliance has been found there has been actual compliance with the statute, albeit procedurally faulty. The doctrine of substantial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash when the refund becomes otherwise due. The larger Bench without recording the submissions of either side merely discussed outcome of various decisions beginning from para 3 to 7 of the order and came to the conclusion in Para 10 of the reported order that if denial of credit has compelled an assessee to pay duty out of PLA, the refund of the same would be in cash to the extent of payment of duty in cash during that period. It was further held that if no cash payment towards duty were made through PLSA and credit would have remained unutilized in the account books, such credit cannot be allowed by way of cash. 5.13 While arriving at the aforesaid conclusion, the Larger Bench in para 11 of the order recorded the fact that in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in accordance with law and unadjusted amount s not expressly remitted to be refunded. In absence of express provision to grant refund, that is difficult to entertain except in the case of export. There cannot be presumption that in the absence of department to make refund in other cases that is permissible. Refund results in outflow from treasury, which needs sanction of law and an order of refund for such purpose is sine qua non. Law has only recognized the event of export of goods for refund of Modvat credit a has been rightly pleaded by Revenue and present reference is neither the case of otherwise due of the refund nor the case of exported goods. Similarly absence of express grant in statute does not imply ipso facto entitlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to it like writ jurisdiction powers. Judicial discipline requires us to follow the law declared by the Larger Bench s of the Tribunal. We also note that the insistence of the learned Advocate on the fact that appeal filed by the Revenue before Hon ble Supreme Court in the case of Union of India vs Slovak India Trading Co. Pvt Ltd (supra) stands dismissed by the Hon,ble Supreme Court and as such it is the declaration of law by the Hon ble Supreme Court which should be followed, is not appropriate. Apart from the fact that the dismissal of the appeal by the Hon ble Supreme Court already stands taken note of by the Larger Bench, we also note that dismissal of appeal by he Hon ble Supreme Court was in view of the concession made by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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