TMI Blog2018 (8) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has held that Tribunal is fully justified in ordering refund particularly in the light of the closure of the factory and in the light or the assessee coming out of the Modvat Scheme. Appeal allowed - decided in favor of assessee. - D.B. Central/Excise Appeal No. 118 / 2017 - - - Dated:- 7-2-2018 - MR. K. S.JHAVERI AND MR. VIJAY KUMAR VYAS, JJ. For The Appellant (s) : Mr. Bharat Rajchandani with Mr. Sameer Jain, Mr. Daksh Pareek And Mr. Arjun Singh For The Respondent(s) : Mr. Siddharth Ranka ORDER 1. By way of this appeal, the appellant has challenged the judgment and order of Tribunal whereby the Tribunal has dismissed the appeal of the assessee. 2. This Court while admitting the appeal on 02.11.2017 framed the following substantial questions of law: i) Whether, in the facts and circumstances of the present case, the Appellate Tribunal was correct, in law, and justified in holding that the refund cannot be allowed under Rule 5 of the Cenvat Credit Rules, 2004? ii) Whether in the facts and circumstances of the present case, Appellate Tribunal was correct, in law, and justified in holding that there is no provision for allowing refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L 469 HC KAR CX, wherein it has been observed as under: 1. The Union of India is before us raising the following questions of law in para 17 in the light of the order of the Tribunal dated 9.8.2005 passed in Excise Appeal No. 934/2004 on the file of the Customs, Excise and service Tax Appellate Tribunal, Bangalore. 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 entitle for refund even if it goes out of Modvat Scheme or Company is closed? Rule 5. Refund of CENVAT Credit: Where 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licitor General had conceded the correctness of the High Court's judgment. What was conceded by the Learned Additional Solicitor General was that the various judgments relied upon by the Court were not appealed against and not the correctness of the judgment ot Karnataka High Court the Apex Court in Birla Corporation Ltd. v. Commissioner of Central Excise 2005 (186) E.L.T. 266 (S.C.) held that when question arising for consideration on facts almost identical to previous case, Revenue cannot be allowed o take different view. Following this principle, we cannot take any other view other than the one approved by the Apex Court, which came before it from the Karnataka High Court. 3. Commissioner of Central Excise vs. Birla Textile Mills, 2016 (325) ELT 651 (Del.), wherein it has been observed as under: 5. It is inter alia observed by the Tribunal that it is the discretion of the Authorities to allow the refund in cash under certain circumstances. In coming to this conclusion, the Tribunal referred to certain decisions as well. In the facts of the present case, it was found that the unit of the respondent-assessee originally located at Delhi has been shifted to B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 (S.C.), wherein it has been observed: 6. We may look at the matter from another angle. If on the inputs the assessee had already paid the taxes on the basis that when the goods are utilised in the manufacture of further products as inputs thereto then the tax on these goods gets adjusted which are finished subsequently. Thus a right accrued to the assessee on the date when they paid the tax on the raw materials or the inputs and that right would continue until the facility available thereto gets worked out or until those goods existed. Therefore, it becomes clear that Section 37 of the Act does not enable the authorities concerned to make a rule which is impugned herein and, therefore, we may have no hesitation to hold that the rule cannot be applied to the goods manufactured prior to 16.3.95 on which duty had been paid and credit facility thereto has been availed of for the purpose of manufacture of further goods. 6. Collector of Central Excise, Pune vs. Daiichi Karkaria Ltd., 1999 (112) ELT 353 (SC), wherein it has been observed as under: 17. It is clear from these Rules, as we read them, that a manufacturer obtains credit for the excise duty paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the apex court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question (sic) open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down By the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to upset what has been decided by lesser tribunals. Not being a fringe area for judicial activism to play the submission must suffer rejection. 14. When at the end of the legal tether, the appellant made a plaintive plea for considerateness based on good conscience. No doubt, we feel this is a case where, had the party not been optimistically asleep but has diligently appealed, the tax could not have been recovered by the State. We equally see some compassionate merit in his complaint that a few of the assessment orders made misleading reference to the pendency of the High Court being seized of the identical legal issue. But it is no good alibi in explanation of the sin of gross delay in conning to the High Court. It is doubtful if the Central Board can exercise any judicial power and direct refund. Nor is there a statutory duty cast on it to consider applications for refund and so a writ of mandamus could not issue from the Court. Even so, it is always open to the State, where the justice of the case warrants reconsideration of the levy of a tax illegally imposed, to view the situation from an equitable standpoint and direct refund, wholly or in part. This perhaps, is a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y declaration of law or a binding precedent. [Vide The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust and Anr. AIR 1978 SC 1283; Ahmedabad Manufacturing Calico Printing Co. Ltd. v. The Workmen and Anr. AIR 1981 SC 960; Indian Oil Corporation Ltd. v. State of Bihar and Ors. AIR 1986 SC 1780; Supreme Court Employees' Welfare Association v. Union of India and Ors. AIR 1990 SC 334; Yogendra Narayan Chowdhury and Ors. v. Union of India and Ors. AIR 1996 SC 751; Union of India and Anr. v. Sher Singh and Ors. AIR 1997 SC 1796; V.M. Salgaocar Bros. (P) Ltd. v. Commissioner of Income Tax AIR 2000 SC 1623; Saurashtra Oil Mills Assn., Gujrat v. State of Gujrat and Anr. AIR 2002 SC 1130; Union of India and Ors. v. Jaipal Singh (2004) 1 SCC 121; and Y. Satyanarayan Reddy v. Mandal Revenue Officer, Andhra Pradesh (2009) 9 SCC 447]. 9. We have heard counsel for the parties. 10. Before proceeding with the matter, it will not be out of place to reproduce Rule 5 of the Central Excise Act which reads as under: Rule 5. Refund of CENVAT Credit: Where any inputs are used in the final products which are cleared for export under bond or letter of undert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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