TMI Blog2022 (12) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... ing undertaken discharge of duty liability. Furthermore, duty liability had been discharged at the option of the appellant; in the revised appellate scheme, prescribed pre-deposit pending disposal was the sole mandate of law. The submission of the Learned Counsel for appellant is thus devoid of logic or merit. There are no reason to interfere with the rejection of plea for monetisation of the impugned amount. Appeal is dismissed. - EXCISE APPEAL NO: 85919 OF 2015 - FINAL ORDER NO. A/86206/2022 - Dated:- 15-12-2022 - MR C J MATHEW, MEMBER (TECHNICAL) AND MR AJAY SHARMA, MEMBER (JUDICIAL) Shri R G Sheth, Advocate for the appellant Ms Anuradha Parab, Assistant Commissioner (AR) for the respondent ORDER This appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions and drawing upon the peculiarity of the circumstances in which they had been deprived of credit earlier. 3. It is common ground that the credit restored in the account of the two units was the reversal of earlier debit for discharge of duty liability under protest during the investigations. In the normal course, the controversy would not have arisen except that, as the appellant contends, the only way of implementing the decision of the Tribunal directing consequential relief was, owing to non-existence of CENVAT credit account, by releasing payment instead. 4. Learned Counsel for the appellant relies upon the decision of the Hon ble High Court of Bombay in Commissioner of Central Excise, Nashik v. Jain Vanguard Polybutlen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal in Voltas Ltd v. Commissioner of Central Excise, Pune-IV [2018 (4) TMI 352-CESTAT MUMBAI] to be of relevance. 6. The claim of the appellant is that, in the special circumstances of non-existence of CENVAT credit account by closure of unit, they are in much the same boat as exporters unable to utilize accumulated credit who are entitled to be compensated through operation of rule 5 of CENVAT Credit Rules, 2004. There is also no doubt that the decision of the Hon ble High Court of Karnataka in re Slovak India Trading Co Pvt Ltd had been followed by the Tribunal in several disputes in circumstances of inability to utilize restored credit. Since then, however, the decision of the Hon ble High Court of Bombay in re Gauri Plast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to the point, the essence of CENVAT credit scheme, dealt with at length thus 6. It would appear from these decisions that neither assures a precedent to be followed without examining the circumstances of eligibility. Indeed, the Hon ble High Court of Karnataka did, in re Slovak India Trading Co Ltd, emphasise the importance of scrutinising the circumstances of each claim for refund and directed that a disposal solely on that one statutory exclusion would not suffice. Following that prescription, it is necessary to examine the circumstances in which this claim has been made. Before so doing, the CENVAT credit and the implication of allowing the claim preferred by the appellant must also be subject to examination. 7. CENVAT credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are yet to be cleared. Without production in process or without possession of processed goods, an assessee is not an assessee but in the same status as the ultimate consumer. 9. For that reason, if an assessee has CENVAT credit balance without any duty on which to apply it, such assessee is an ultimate consumer to the extent that duty or tax has been paid upto the preceding stage and there no scope for setting off of such credit just as the ultimate consumer, as commonly understood, is. It is clear that legislative intent did not envisage the monetisation of CENVAT credit in the event of impossibility of utilisation. CENVAT Credit Rules, 2004 is not an exemption scheme but a contrivance to ensure that the incidence of duty or tax i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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