TMI Blog2019 (4) TMI 1896X X X X Extracts X X X X X X X X Extracts X X X X ..... s also not rebutted by the revenue that the appellants had earned these credits and could not utilize the same due to substantial physical or deemed exports where no Central Excise duty was payable and under the existing provisions, had the appellants chosen to do so they could have availed refunds/ rebates under the existing provisions. There is no provision in the newly enacted law that such credits would lapse. Thus merely by change of legislation suddenly the appellants could not be put in a position to lose this valuable right. Following the judgement of Hon ble Karnataka High Court in the case of UNION OF INDIA VERSUS SLOVAK INDIA TRADING CO. PVT. LTD. [ 2006 (7) TMI 9 - KARNATAKA HIGH COURT ], it can be held that the assessee is eligible for the cash refund of the cessess lying as cenvat credit balance as on 30/06/2017 in their accounts. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 50081 of 2019 - FINAL ORDER NO. 51849/2019 - Dated:- 26-4-2019 - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) AND SHRI C.L. MAHAR, MEMBER (TECHNICAL) Shri U. Alvi, Advocate for the appellant Shri R.K. Mishra, Authorized Representative (DR) for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he new Tax Regime. The appellant filed refund claim of the unutilized cesses with the Adjudicating authority, which rejected the refund claim of the appellant on the ground that since there was no provision to carry over the impugned cesses under the GST regime and there was no provision for refund of the same and thus such credits would lapse. Even the appeal filed by the appellant was rejected by the Commissioner (Appeals) on these grounds. The appellant is before us in the present appeal against the rejection order of their refund claim of the Ed. Cess, S H Cess and KK cess ( in short cesses ). 2. The learned Counsel appearing on behalf of the appellants has vehemently argued that the refund is admissible to the appellants as the impugned credits valid stood in their accounts on 01/07/2017 and they were eligible to utilized the same for payment of duty on their domestic clearances but the same could not be utilized as the said cesses were not carried over to the GST regime. Different benches of the Tribunal have consistently held that where lawful Cenvat credit accumulated in the accounts of an assesses becomes unutilizable due to closure of the factory or that the factory w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the amount that is sought to be lapsed relates to the inputs already used in the manufacture of the final products but the final products have already been cleared from the .factory before 16-3-1995. Thus the right to the credit has become absolute at any rate when the input is used in the manufacture of the finalproduct. The basic postulate, that the scheme is merely being altered and, therefore, does not have any retrospective or retro-active effect, submitted on behalf of the State, does not appeal to us. As pointed out by us that when on the strength of the rules available certain acts have been done by the parties concerned, incidents following thereto must take place in accordance with the scheme under which the duty had been paid on the manufactured products and if such a situation is sought to be altered, necessarily it follows that right, which had accrued to a party such as availability of a scheme, is affected and in particular, it loses sight of the fact that provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assessees concerned. Therefore, the scheme s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under consideration. In Eicher Motors case (supra), it has been held that the assessee became entitled to take the credit on the input having been received in the factory on the basis of the existing Scheme. It is held that the right to credit became absolute when the input was used in the manufacture of the final product. It is held that the incident following thereto must take place in accordance with the Scheme under which the duty had been paid on the manufactured product. It is held that if such a situation is sought to be altered necessarily it follows that right which accrued to a party gets affected. It is held that the Scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier Scheme was applicable and under which the assessee had availed of the credit facility for payment of taxes. It is held that the right which accrued to the assessee on the date when they paid the taxes would continue until the facility available thereto gets worked out or until those goods existed. It is held that the amended sub-rule could not be applied to the goods manufactured prior to 16th March, 1995 (date on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Apex Court judgement in Eicher Motors case and will not extinguish with the change of law unless there was a specific provision which would debar such refund. It is also not rebutted by the revenue that the appellants had earned these credits and could not utilize the same due to substantial physical or deemed exports where no Central Excise duty was payable and under the existing provisions, had the appellants chosen to do so they could have availed refunds/ rebates under the existing provisions. There is no provision in the newly enacted law that such credits would lapse. Thus merely by change of legislation suddenly the appellants could not be put in a position to lose this valuable right. Thus we find that the ratio of Apex courts judgment is applicable as decided in cases where the assessee could not utilize the credit due to closure of factory or shifting of factory to a non dutiable area where it became impossibly to use these credits. Accordingly the ratio of such cases would be squarely applicable to the appellant s case. Following the judgement of Hon ble Karnataka High Court in the case of 2006 (201) E.L.T. 559 (Kar) in the case of Slovak India Trading Co. P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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