TMI Blog2023 (5) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of finished goods which have been exported out of India under bond or letter of undertaking or used in intermediate products cleared for export. (2) The assessee is not in a position to utilize the Cenvat credit for payment of duty on finished goods cleared for home consumption or cleared for export under rebate claim. (3) The exports have not been made by claiming draw-back or input duty rebate. Though the appellant had relied upon the decision of Karnataka High Court in UNION OF INDIA VERSUS SLOVAK INDIA TRADING CO. PVT. LTD. [ 2006 (7) TMI 9 - KARNATAKA HIGH COURT] which was also confirmed by the Hon ble Supreme Court but the said case declared that refund claims of Cenvat cannot be subjected to limitation of time irrespective. The period involved is prior or post amendment. In the present case, since the refund claim was filed under Rule 5 of Cenvat Credit Rules, 2004 and after it got amended after April 2012. The amended Rule 5 does not permit refund of such Cenvat credit which could not be utilized for any possible reason. Other than Rule 5 of Cenvat Credit Rules, there is no other provision either in Cenvat Credit Rules, 2004 or in Central Excise Rules, 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19.04.2017 and 10.05.2017. The supply was finally disconnected on 22.09.2017. The appellant also informed that they had migrated under GST, however, had not filed Trans-1 due to which the aforesaid amount of unutilized Cenvat credit could not be carried forward and was still lying in their books of account. 2. Being unsatisfied with that response, the Department served a show cause notice bearing No. 2302 dated 01.11.2019 upon the appellant proposing the rejection of the refund claim of accumulated Cenvat credit. The said proposal was confirmed initially vide order-in-original No. 169/2020-21 dated 29.07.2020 on the ground that Rule 5 of Cenvat Credit Rules is not available for the purpose of refund that too after the closure of the factory. It was rejected also on the ground that post introduction of CGST Act the appellant has failed to transfer the closing balance of Cenvat credit through Trans-1 as was mandatory in terms of Section 140 of CGST Act 2017. Section 11B of Central Excise Act is also held not applicable to the given facts and circumstances. These findings were confirmed by Commissioner (Appeals) vide order-in-appeal No. 309/2020 dated 15.10.2020. Being aggrieved o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be dismissed. 6. Learned departmental representative has relied upon the decision of this Tribunal in the case of Modipon Ltd. versus Commissioner of Central Excise, Ghaziabad reported as 2014 TIOL 3134 CESTAT DEL. And the decision in the case of Lata Hydrocarbon Resources Pvt. Ltd. versus Commissioner of Central Tax, Hyderabad reported as 2020 TIOL 265 - CESTAT HYD. 7. Having heard the rival contentions, I observe and hold as follows :- Following are observed to be the admitted facts in the present case :- (i) The appellant s manufacturing unit got closed in financial year 2016-2017 ; (ii) The Cenvat credit got accumulated due to the difference in duty on final products as compared to the imports ; (iii) The refund claim was filed two years later. The aforesaid closure i.e. on 16.04.2019 ; (iv) Despite the closure of factory the service tax registration was not surrendered by the appellant ; (v) The appellant got registered under the subsequent GST regime, however, failed to file the Tans-1 ; (vi) Lastly that the refund claim has been filed under Rule 5 of Cenvat Credit Rules. 8. In the light of these admitted facts, foremost it is nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible reason. I drawn support to this finding from the decision of Lata Hydrocarbon (supra). A refund claim was filed after 01.04.2012 which is the issue in dispute Therefore, the assessee was not entitled to refund as there was no saving clause when Rule 5 of CCR was amended Besides, the limitation period was also violated as the refund claim was filed more than six years after the closure of the factory Hence the OIA warrants no interference with . 11. Other than Rule 5 of Cenvat Credit Rules, there is no other provision either in Cenvat Credit Rules, 2004 or in Central Excise Rules, 2002 for giving cash refund of the accumulated Cenvat credit. Even Section 11B of Central Excise Act is only for the refund of duty paid either through cash or through Cenvat credit or for the Cenvat credit wrongly reversed. Hence, this section cannot be invoked in cash refund of the unutilized Cenvat credit lying in the Cenvat account of the manufacturer at the time of closure of the factory. 12. This Tribunal in Modipon Ltd. (supra) has held that when a factory closes down the Cenvat credit lying unutilized in its Cenvat credit account shall lapse unless the factory resumes produc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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