TMI Blog2020 (9) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... primary condition under Rule 10(1) alongwith liabilities of the Delhi unit, if any, and Rule 10(3) provides for additional condition that such transfer/ unit or factory should include transfer of stock of input as such or in process, or the capital goods to the new site and such transferred goods are duly accounted for to the satisfaction of the Central Excise Authority. Thus, prima-facie with respect to claim of the appellant or request for transfer of cenvat credit from Delhi unit to Baddi unit requires that a finding to be recorded by the Central Excise Authority having jurisdiction over the Baddi unit to record the finding of transfer / shifting of Delhi unit to Baddi and to record a further finding in regard to transfer of inputs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cenvat credit was taken and transfer was sought. 3. The appellant informed that the Baddi Unit was registered with the Department on 05.05.2015 and had not taken cenvat credit as they were availing Area Based Exemption during the period prior to 05.05.2015. It is also submitted that the input credit was taken by the Delhi Unit and the material was transferred to the Baddi Unit for job work and the cenvat credit availed as the principal manufacturer. It was also submitted that no stock was available with the appellant at Delhi the goods were cleared under exemption vide Notification No. 12/2012-CE dated 27.03.2012. Show cause notice was issued on 20.09.2016 for disallowing taking of credit of ₹ 48,29,318/- and penalty was also pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 6. As per grounds of appeal, it is urged that the impugned order is contrary to facts and attendant provisions of law and if permitted to stand would result in grave miscarriage of justice. Further it is urged that the appellant had submitted the photocopy of ER-1, Part-1 and also submitted prescribed undertaking given by L T Construction that the material supplied by the appellant was received at the Amarvati site (power project) without paying the excise duty, which shows the fulfilment of the condition of exemption notification. It is also submitted that the appellant does not have any inputs as such or under process in the stock, as the clearance of finished goods was made under exemption vide Notification No. 12/2012-CE dated 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied on the decision of CCE, Jalandhar vs. Kochar Sung-up Acrylic Ltd. -2010 (259) ELT 713 (T). 8. There is no dispute that the appellant is claiming refund of excise duty paid on inputs and the goods were cleared under the exemption to mega power projects, wherein excise duty do not attract and further the cenvat credit of excise duty cannot be utilised; the appellant claims the refund of excise duty under Rule 5 of Cenvat Credit Rules. This Tribunal in CCE vs. D.C. Polyester Pvt. Ltd. held that Board‟s Circular No. 701/17/2003-CX dated 12.03.2003 allows refund of un-utilised credit of Additional Duty of Excise (Goods of Special Importance) on export of the finished goods, even if such finished goods are not subjected to levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed by High court under Rule 5 of CCR, 2002/2004. It is further submitted that the claim of refund is not subjected to limitation under Section 11B as it is the claim of refund of unutilised credit. 9. The Hon‟ble Karnataka High Court in UoI vs. Slovak India Trading Co. Pvt. Ltd. 2006 (201) ELT 559 (Kar.) =2008 (10) STR 101 (Kar.) has held that in the absence of any express prohibitory provisions, unutilised credit is admissible as cash refund. It has been consistently held by the following decisions that the refund of unutilised credit is permissible when it is not possible to utilise such credit- (a) 2004 (169) ELT 162 (Tri.) Shree Prakash Textile (b) 2004 (170) ELT 507 (Tri.) Arcoy Industries (c) 2003 (158) ELT 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lam for Revenue opposes the appeal and rely upon the findings in the impugned order. She further reiterated that under the facts and circumstances appellant is not entitled to cash refund of unutilised cenvat credit. Rule 5 of Cenvat Credit Rules provides for refund of unutilised cenvat credit in specific case of export etc. of finished goods. 12. Having considered the rival contentions, I find that admittedly appellant have maintained proper record of their transactions including taking of cenvat credit on the eligible inputs. Appellant have claimed transfer/ shifting of their Delhi unit to their Baddi unit. But from the finding of the Court below, I find that no finding have been recorded with respect to the claim of shifting of Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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