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TMI Blog2020 (3) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... ,255/- on 04.09.2015 of the unutilized CENVAT Credit lying in balance on the ground of closure of the factory. It is stated in the refund claim that the CENVAT Credit lying in the balance as on date of closure of factory is refundable in cash to them under Section 11B of the Central Excise Act, 1944. A show-cause notice was issued to them on 09.11.2015 proposing rejection of the said claim. On adjudication, the claim was rejected both under Section 11B of Central Excise Act, 1944 as well as under Rule 5 of the CENVAT Credit Rules, 2004. Aggrieved by the said order, they filed an appeal before the learned Commissioner (Appeals), who in turn, rejected their refund claim. Hence, the present appeal. 3. Learned Advocate Shri V.M. Doiphode for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture Pvt. Ltd. Vs. Commissioner of Central Excise, Indore - 2019 (30) GSTL 224 (Bom), is distinguishable and not applicable to the facts of their case. It is his contention that in the present case, the appellant had paid the duty in cash for the period April, 2011 to October, 2011, even though CENVAT Credit account was debited periodically during the said period in discharging their duty liability. It is not a case that the factory has been closed and they are unable to utilize the CENVAT Credit, hence, the refund in cash is claimed. It is his contention that since the use of credit has been denied to them and the appellants are forced to pay the duty by debiting their PLA account, then the refund of the amount paid through cash will be ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit account is challenged before the learned Commissioner (Appeals) by the appellant requesting the said amount to be paid in cash has no bearing with the present appeal as the present appeal relates to refund of the CENVAT Credit lying unutilized due to closure of the factory. He submits that the issue is squarely covered by the larger Bench judgment of the Hon'ble Bombay High Court in the case of Gauri Plasticulture Pvt. Ltd. (supra). 6. We have carefully considered the submissions advanced by both sides. The undisputed facts are that the appellant has surrendered their Central Excise Registration certificate on 09.07.2015 and at the time of surrendering of their registration, the CENVAT Credit amount lying unutilized was Rs. 1,44, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lordships observed as follows: - "a) Whether cash refund is permissible in terms of clause (c) to the proviso to section 11B(2) of the Central Excise Act, 1944 where an assessee is unable to utilize credit on inputs? (b) Whether by exercising power under Section 11B of the said Act of 1944, a refund of unutilised amount of Cenvat Credit on account of the closure of manufacturing activities can be granted? (c) Whether what is observed in the order dated 25th January, 2007 passed by the Apex Court in Petition for Special Leave to Appeal (Civil) No. CC 467 of 2007 (Union of India v. Slovak India Trading Company Pvt. Ltd.) can be read as a declaration of law under Article 141 of the Constitution of India?" 8. After analyzing the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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