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TMI Blog2023 (2) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmed by Hon'ble Karnataka High Court reported at - 2006(201) ELT 559 (KAR) and by Hon'ble Supreme Court reported as -2008 (223) ELT A170 (SC). (b) Surekha Project vs. Union of India - 2019 (367) ELT 789 (Gau.) (c) Shalu Synthetic Private Limited vs. CC & SD Vapi - 2017 (346) ELT 413 (Tri-Ahmd) (d) CIRCOR Flow Technology India Private Limited vs. CC CGST & CE Coimbatore -2022 (59) GSTL 63 (Tri. Chennai) (e) Luvkhush Textile vs. CCE, Jaipur - 2017 (353) ELT 417 (RAJ) (f) Welcure Drugs & Pharmaceuticals limited vs. CCE Jaipur - 2018 (15) GSTL 257 (RAJ) (g) Toshiba Machine Private Limited vs. CCT Chennai - 2019 (27) GSTL 216 (Tri. Chennai) 3. Shri Vijay G Iyengar, learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. I have carefully considered the submissions made by both the sides and perused the record. I find that the question to be decided is, first, whether the appellant is entitled for the refund of Cenvat credit of education cess and higher education cess and consequently entitled for cash refund in case if unable to utilize the said Cenvat credit under GST regime and second, whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) the Education Cess on taxable services leviable under section 91 read with section 95 of the Finance (No.2) Act, 2004 (23 of 2004); and (xa) the Secondary and Higher Education Cess on taxable services leviable under section 136 read with section 140 of the Finance Act, 2007 (22 of 2007); and (xi) the additional duty of excise leviable under section 85 of Finance Act, 2005 (18 of 2005) From the above Rule, under clause (vi) and (via), the credit of Education Cess and Secondary and Higher Education Cess is clearly allowed. Therefore, the appellant is legally entitled for Cenvat of Education Cess and Secondary and Higher Education Cess. Hence, on this count refund cannot be denied. 6. As regards limitation, in the judgments cited by the learned Counsel, the Hon'ble High Court also considered limitation and held that in case of refund of accumulated unutilized credit, limitation shall not apply. Relevant judgments are reproduced below:- (a) Slovak India Trading Company Pvt. Limited (Karnataka High Court)(supra): "4. Admitted facts would reveal of a claim of cash refund and admitted facts would reveal of rejection at the hands of the Assistant Commissioner and also the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "10. The above said two judgments of the Hon'ble High Courts squarely cover the issue in favour of the appellant. It is to be noted that as against the above-said judgments of the Hon'ble High Courts, the ld. Departmental Representative seeks to rely upon the decision of this Bench in the case of M/s. Jai Elastics Pvt. Ltd. (supra). I have perused the said order produced by the ld. Departmental Representative and note that the said order of the Tribunal relies on the decision of the Larger Bench of the Tribunal in the case of Steel Strips v. CCE, Ludhiana (supra). With utmost respect to the Bench, I find that the judgment of the Hon'ble High Court of Karnataka in the case of Union of India v. Slovak India Trading Co. Pvt. Ltd. (supra) was cited before the Larger Bench and it was taken note of, but no reasonings have been recorded as to why the said judgment of the Hon'ble High Court of Karnataka was not applicable in the similar/identical situations. In my view, the judgments of the Hon'ble High Court of Bombay and Karnataka will have to be followed by the Tribunal in an identical/similar situation. In the case in hand, I find that the issue involved is identical to the issue which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration is that when the manufacturing unit of the assessee is closed, the benefit which is otherwise available to him is required to be paid and the Revenue cannot deny the benefit of the same. 13. In Commissioner of Central Excise, Ranchi v. Ashok Arc, the High Court of Jharkhand 2006 (193) E.L.T. 399 (Jhar.) = 2007 (7) S.T.R. 365 (Jhar.) has held as under :- 4. In this petition, the Revenue has raised the following question for reference : "Whether the learned Tribunal has gravely erred in allowing the Appeal and directing the authority to refund the pre-deposit amount in cash when the same has been deposited through RG 23A Pt.-II i.e. MODVAT account and under the provisions of Central Excise Rules, 1944 no such refund in cash is permissible? 5. On hearing the parties, we find that the aforesaid issue was raised by the Revenue before the CEGA Tribunal, which answered the same in favour of the respondent by the impugned order dated 30th April, 2002. The stand of the learned Counsel for the Revenue that the amount should have been adjusted in RG-23A Part-II account can not be accepted, there being no such RG-23 Part-II account available in respect of the finishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed various case laws in which similar claims were allowed. The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light of the assessee coming out of the Modvat Scheme. In these circumstances, we answer all the three questions as framed in para 17 against the Revenue and in favour of the assessee. 15. The order of the Karnataka High Court has further been confirmed by the Hon'ble Supreme Court in the SLP mentioned in the above paragraph. Taking into consideration, the Rule 5 of the Cenvat Credit Rules, 2002, we are of the view that the Tribunal was not correct while relying upon the judgment of the Larger Bench in Gauri Plasticulture (P) Ltd. as Rule 5 in no way prohibits the payment of the refund amount in cash and more particularly when after a proper adjudication of matter an amount of Rs. 63,001/- is said to have been sanctioned in favour of assessee (appellant) and the factum of their manufacturing unit having been closed, we are of the considered opinion that the present appeal dese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event it stands cancelled or, if utilised, has to be paid for. We are here really concerned with credit that has been validly taken, and its benefit is available to the manufacturer without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is, ther efore, indefeasible. It should also be noted that there is no co-relation of the raw material and the final product; that is to say, it is not as if credit can be taken only on a final product that is manufactured out of the particular raw material to which the credit is related. The credit may be taken against the excise duty on a final product manufactured on the very day that it becomes available. 18. It is therefore, that in the case of Eicher Motors Ltd. v. Union of India - [1999 (106) E.L.T. 3] this Court said that a credit under the Modvat scheme was "as good as paid". 12. Four different High Courts have also taken the view against which the SLP was preferred and earlier also the Tribunal granted refund against which the SLP was not preferred. In that view of the matter, the principle of estoppel applies as once the department has accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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