TMI Blog2017 (5) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... ing been closed, we are of the considered opinion that the present appeal deserves acceptance, the same is, therefore, allowed - Decided in favor of the assessee. - D. B. Central Excise Appeal No. 17 / 2012 - - - Dated:- 4-5-2017 - Govind Mathur And Vinit Kumar Mathur, JJ. For Appellant : Mr. Manoj Bhandari For Respondent : Mr. Kuldeep Vaishnav JUDGMENT Per Hon ble Mr. Justice Vinit Kumar Mathur Reportable The present appeal has been preferred against the judgment and order dated 03.02.2012 passed by the learned CESTAT and the order passed by the Commissioner (Appeals) dated 08.12.2008. Briefly the facts in the case are that the appellant is a manufacturer of ACSR Conductors of Aluminum falling under the Chap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner before the learned Customs Excise and Service Tax Appellate Tribunal, but the same was also rejected, affirming the order of Commissioner (Appeals) vide its order dated 03.02.2012. The Tribunal relying upon a Larger Bench decision in the case of Gauri Plasticulture (P) Ltd. Vs. CCE 2006 (202) ELT 199 held that refund in cash is not warranted in the facts of the present case. Aggrieved of the order passed by the Tribunal on 03.02.2012 as well as the order passed by the Commissioner (Appeals) on 08.12.2008, present appeal has been filed. This Court on 21.04.2014 while admitting the present appeal framed the following substantial question of law:- (1) Whether in the absence of any prohibition under the Cenvat Credit Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant, in view of the Larger Bench decision in Gauri Plasticculture (P) Ltd. Learned counsel for the revenue further submits that there is no provision for the payment in cash on account of the refunds in the CANVET Credit Rules, 2002. Heard learned counsel for the parties. In view of the fact that after the cristilization of the claim on account of the CANVET Credit in favour of the assessee, assessee was entitled for the refund of ₹ 63,001/- from the revenue which is not in dispute. It is also a fact that manufacturing unit of assessee had been closed and the concern of the assessee is not in production any more. Therefore, in view of Rule 5 which is reproduced as under:- Rule 5. Refund of CENVAT credit.- Where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o him is required to be paid and the revenue cannot deny the benefit of the same. In Commissioner of Central Excise, Ranchi Vs. ASHOK ARC, the High Court of Jharkhand has held as under:- 4. In this petition, the Revenue has raised the following question for reference: Whether the learned Tribunal has gravely erred in allowing the Appeal and directing the authority to refund the pre-deposit amount in cash when the same has been deposited through RG 23A Pt.- II i.e. MODVAT account and under the provisions of Central Excise Rules, 1944 no such refund in cash is permissible? 5. On hearing the parties, we find that the aforesaid issue was raised by the Revenue before the CEGA Tribunal, which answered the same in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der? Rule 5. Refund of CENVAT Credit: When any inputs are used in the final products which are cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, the CENVAT credit in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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