TMI Blog2019 (12) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... of credit already availed and unutilized, thus Respondent-Assessee is entitled to refund of unutilised credit of duty paid on inputs. The Assessee-Respondent has claimed refund of Cenvat Credit which could not be utilised. It is not case of refund of duty paid on finished goods; or duty paid on inputs which formed part of cost of purchase and party did not avail Cenvat Credit. Situation could be different, had it been a case where Assessee did not avail Credit and claimed refund on the ground that duty was paid by mistake. It is case where over the period Respondent took credit of duty paid on inputs but could not use at the time of sale of finished goods. Appeal dismissed. - CEA No.36 of 2019(O&M) - - - Dated:- 11-12-2019 - Mr. Justice Jaswant Singh And Mr. Justice Girish Agnihotri For the Appellant : Mr. Sunish Bindlish, Advocate For the Respondent. : Mr. Jagmohan Bansal, Advocate ORDER JASWANT SINGH, J. 1. The Appellant-Principal Commissioner of Central Excise through instant Appeal under Section 35G of Central Excise Act, 1944 is seeking quashing of order dated 15.3.2018 (Annexure A-3) whereby Customs Excise and Service Tax Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has held that cash refund of unutilised Cenvat Credit is not permissible. Larger Bench of Tribunal in the case of Steel Strips Vs CCE, Ludhiana 2011 (269) ELT 257 and Division Bench of Tribunal in the case of Phoenix Industries Pvt. Ltd. Vs CCE 2015 (201) ELT 303 on similar facts have rejected refund claim of unutilised Cenvat credit. He further contended that duty paid on inputs formed part of cost of output supplies thus test of unjust enrichment as mandated under Section 11B of the 1944 Act must be applied. 5. Counsel for the Respondent-Assessee contended that Tribunal has sanctioned refund relying upon pronouncement of law by various High Courts including this court in the case of Rama Industries Ltd. Vs CCE, Chandigarh 2009-TIOL-100-HC-P H-CX, thus there is nothing wrong in the impugned order, warranting interference of this court. As per clause (c) to proviso of Section 11B (2) of the Central Excise Act, 1944 cash refund of unutilised Cenvat Credit is permissible. As per judicial discipline, Division Bench of this court is bound by decision of coordinate bench of this Court and not any contrary view of different high court irrespective of strength of bench. This cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Pitamber Coated Paper Limited (supra) is not applicable to the facts of this case, as in this case, at any stage, nowhere the availment of Cenvat credit was questioned rather the Revenue collected duty from the appellant on their final products. 9. The Revenue is heavily relying on the decision of Steel Strips (supra) to say that it is the main ground in the show cause notice to deny the refund claim filed by the appellant. We find that the facts in the case of Steel Strips (supra) are altogether different from the facts of the case in hand. In the case of Steel Strips (supra), the assessee had not closed down their factory nor they surrendered their registration certificate, they were not able to utilize Cenvat credit and that is why they filed the refund claim which was held by the Larger Bench of this Tribunal that same cannot be refunded. Therefore, the facts of said case are not applicable to the facts of this case. Moreover, similar facts were there in the case of Purvi Fabrics Texturise (P) Limited (supra) wherein the unit of the assessee was lying closed but assessee did not surrender their registration certificate nor closed their business. In that circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of unutilised Cenvat Credit. The Appellant is not disputing entitlement of Respondent qua Cenvat credit meaning thereby Respondent-Assessee had met with all the conditions which are necessary to avail Cenvat credit. 8. We further find that this court in Rama Industries (Supra) relying upon judgment of Karnataka High Court in the case of Union of India Vs Slovak India Trading Co. Pvt. Ltd. 2006 (201) ELT 559 (Kar) has sanctioned refund of unutilised Cenvat Credit on the closure of factory. Rajasthan High Court in the case of Lav Kush Textiles Vs CCE, Jaipur 2017 (353) ELT 417 (Raj), Welcure Drugs Pharmaceuticals Ltd. Vs CCE 2018 (15) GSTL 257 (Raj) has formed similar view. High Courts have held that judicial discipline is required to be maintained; Tribunal cannot distinguish High Court judgments and is bound by High Court judgments. However, larger bench of Bombay High Court in the case of Gauri Plasticulture (Supra ) has formed a different opinion. It is true that judgment cited by counsel for the Revenue has been delivered by a bench of three judges of Bombay High Court, nonetheless, as per judicial discipline we cannot ignore judgment of this Court an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h can overrule a decision of a Full Bench of lesser number of Judges, Sir John Beaumont in a decision reported in 43 Bom LR 864. : (AIR 1941 Bom 408) Emperor v. Ningappa Ramappa Kurbar, observes at P- 868 (of Bom LR) : (at p. 409 of AIR) as follows: There, seems to be very little authority on the powers and constitution of a Full Bench There can be no doubt that a Full Bench cart overrule a Division Bench, and that a Full Bench must consist of three or more Judges; but it would seem anomalous to hold that a later Full Bench can overrule an earlier Full Bench, merely, because the later bench consists of more Judges than the earlier. If that were the rule, by a majority of four to three, could overrule a unanimous decision of a bench of six Judges, though all the Judges were of co-ordinate jurisdiction. In Enatullah v. Kowsher Ali MANU/WB/0422/1926 Sanderson; C. J., stating the practice in Calcutta, seems to have been of opinion that a decision of a Full Bench could only be reversed by the Privy Council or by a bench specially constituted by, the Chief Justice. The principles of judicial comity and legal propriety require, in order to avoid conflict of authority and to secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the fund: Provided that the amount of duty of Excise and interest, if any paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the fund, be paid to the applicant, if such amount is relatable to- (a) rebate of duty of excise on excisable goods exported out of India or an excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits laying in balance in the applicant s account current maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise and interest if any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and intere ..... 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