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TMI Blog2019 (12) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise, Bahadurgarh issued show cause notice dated 27.5.2016 proposing to reject refund claim, however finding merits in the contention of the Assessee, vide order dated 7.6.2016 sanctioned refund claim of Rs. 16,78,26,562/-. The Revenue did not accept order of Deputy Commissioner and preferred an appeal before first Appellate Authority, which remanded the matter back to adjudicating authority. The Respondent- Assessee assailing order of first appellate authority preferred an appeal before Ld. Tribunal which vide order dated 15.3.2018 (Annexure A-3) set aside order passed by first appellate authority and restored order passed by adjudicating authority. Revenue is in appeal assailing said order dated 15.3.2018 of the Tribunal. 3. The Appellant-Revenue has raised following questions of law for the consideration of this court: i) Whether CESTAT's final order No. 61626/2018 dated 15.03.2018 is fair, legally correct and proper in the light of admission of Refund Claim of CENVAT Credit lying unutilized when Doctrine of unjust enrichment has not been fulfilled and there is no provision under section 11B of the Central Excise Act, 1944/ Rule 5 of the CENVAT Credit Rules, 2004 to sanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1944. Adjudicating authority on account of closure of factory sanctioned refund of unutilised Cenvat credit, therefore, there is no question of unjust enrichment. The Assessee paid duty as leviable on finished goods and there is no question of passing of burden when credit is availed and not utilised. 6. Tribunal after considering various judgments has allowed appeal of the Respondent-Assessee. The findings of Tribunal as recorded in Paras 8, 9 & 10 are reproduced below: " 8. Heard the parties at length and perused the record. We find that the facts of the case are that appellant were manufacturing paper and paper products. They were availing Cenvat credit on inputs clearing the final products on payment of duty. Appellant also closed their factory and surrendered their Central Excise registration. As there was certain Cenvat Credit lying unutilized in their Cenvat account, they filed refund claim. The refund claim was sanctioned to the appellant on closure of the factory, relying the decision of Slavak India Trading Company Pvt. Limited (Supra). The dispute arose between the parties on the ground that the activity undertaken by the appellant does not amount to manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the decision of Steel Strips (supra) and held that in such cases where closure of factory, surrender of registration certificate, assessee is entitled to claim refund of Cenvat credit lying unutilized in their Cenvat account. Therefore, on merits, we hold that appellant is entitled to claim refund which has already been granted to the appellant by adjudicating authority. We also take note of the fact that in the case of Rama Industries Limited (supra), the jurisdictional High Court has entertained the issue on merits and hold that appellant is entitled to claim of refund of Cenvat credit lying unutilized in their Cenvat account on closure of factory and on surrender of registration. 10. We have examined the impugned order placed before us. The adjudicating authority, relying on the decision of Slovak India Trading Company Pvt. Limited (supra) has allowed the refund claim to the appellant. The said order was challenged by the Revenue before the Ld. Commissioner (Appeals) and wanted to place additional evidence which were never prevented by the adjudicating authority to be placed before adjudicating authority. In that circumstance, the appeal filed by the Revenue before the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eshavji Gandhi and ors, AIR 1962 Gujarat 128 wherein court has discussed at length question of judicial precedent. Relevant Paragraph is extracted below: " 4. In India, some High Courts have both Original and Appellate jurisdiction and an appeal lies in certain matters from a decision of a single Judge of a High Court to a Division Bench of that Court. A decision of a High Court Judge of a State is regarded as binding on all the subordinate courts in that State. A decision of a Division Bench of a High Court is regarded as binding on Judges of the same High Court sitting singly in the High Court. A decision of a Full Bench, i, e., a Bench of at least 3 Judges of a High Court is considered binding on all judges of the same High Court sitting singly and on all Division Benches of the same High Court. A decision of the Supreme Court is binding on all the High Courts. By Article 141 of the Constitution of India it is laid down that the law declared, by the Supreme Court shall be binding on all courts within the territory of India. A decision of one High Court is not binding on another High Court. Even a decision of a Full Bench of one High Court is not binding on a Judge sitting sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d binding on all other benches constituted of a lesser number of judges. " 9. Though present appeal deserves to be dismissed in view of afore cited judicial pronouncement, alone nonetheless we deem it appropriate to look at Section 11B of the Central Excise Act, 1944 which governs refund. Section 11B of the Act is extracted below: " Section 11B. Claim for refund of duty and interest, if any, paid on such duty.- 1. Any person claiming refund of any duty of excise and interest, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the person concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub- section (2). " Emphasis Supplied As per clause (c) to proviso of Section 11B (2) of the 1944 Act, refund of credit of duty paid on inputs is admissible and only condition is that inputs must be used in accordance with Rules and Notifications issued under the 1944 Act. As per scheme of the Act and Cenvat Credit Rules, 2004 credit of duty paid on inputs is permissible subject to various conditions like inputs must be used directly or indirectly in the manufacture of finished goods; finished goods should be dutiable; inputs must be accompanied with duty paying invoice etc. In the case in hand, the Appellant-Revenue is not disputing entitlement of credit of duty paid on inputs and dispute is confined to refund of credit alre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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