TMI Blog2023 (5) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 9 - KARNATAKA HIGH COURT] , the Tribunal had dismissed the appeal filed by the department and allowed the refund. To similar effect is the Tribunal s decision in the case of COMMR. OF C. EX. CUS. (APPEALS), TIRUPATI VERSUS KORES (INDIA) LTD. [ 2008 (8) TMI 588 - CESTAT, BANGALORE] , allowing refund of Cenvat Credit lying with the assessee upon closure of the factory. In view of the fact that right to availment of Cenvat Credit is a vested right as held in EICHER MOTORS LTD. VERSUS UNION OF INDIA [ 1999 (1) TMI 34 - SUPREME COURT] , which accrues to a manufacturer, the fact of closure of business leading to non-utilization thereof, cannot deprive the deceased of their accrued interests in law and following judicial discipline and precedent decisions, the appeal is allowed with consequential relief. - Service Tax Appeal No. 76320 of 2018 - FINAL ORDER NO. 75379/2023 - Dated:- 12-5-2023 - MR. RAJEEV TANDON, MEMBER (TECHNICAL) None for the Appellant Mr. A. Roy, Authorized Representative for the Respondent ORDER The present appeal has been filed against the Order-in-Appeal passed by the Ld. Commissioner (Appeals) on 29th January 2018. The impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid three stated, therefore the refund claim did not qualify for its eligibility under Rule 5B ibid. 2.2 He, interalia, further held that there are other conditions also as stipulated in the said notification viz., the amount claimed as refund shall be debited by the claimant from his CENVAT credit account at the time of making the claim and that the claim is required to be filed in a prescribed format in which the required entries need to be filled in. It was his view that particulars of entries required to be filled in while furnishing any claim of refund under Rule 5B of the Cenvat Credit Rules would necessarily have convinced the appellant that the credit balance lying unutilized in their case is not eligible for refund under the said Rule. 3. Thus while holding that the unutilized credit balance for which refund claim had been filed was reflected in the revised ST-3 Return, however, as the appellant did not qualify for the refund, therefore the refund claim of the appellant does not merit the required sanction. He thus rejected the appeal filed by the appellant. 4. It is observed that the impugned appeal has been filed before this Tribunal by Smt. Rukmini Devi, enclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts India Ltd. Vs. CCE-2004 (165) E.L.T. 488 (SC) (iii) UOI Vs. Slovak India Trading Co.-2006 (205) E. L. T. 559 (Kar.) 6. They submitted that it has now been settled by the order of the Commissioner (Appeals), that there is no dispute of the balance Cenvat Credit lying un-utilized, there is no bar to give cash refund thereof when an assessee ceased to exist and activities have come to end due to the death of the service provider working in his individual capacity. They also submitted that due to availability of un-utilized Cenvat Credit balance the assessee was not required to pay tax to the extent of available Credit and still if the said tax is received by Revenue, it cannot be retained on any ground and must be refunded. 7. In view of the extraordinary circumstances of the appellant, the assessee being now deceased, bringing to closure of the business activities of providing of the services by the appellant and ultimately resulting in surrender of the registration, it is therefore certainly a case for consideration of the plea of the appellants. The appellant placed reliance on the decision of the Hon ble Karnatka High Court in the case of Union of India Vs. Solvak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the following decisions : (1) Eicher Tractors v. CCE, Hyderabad, 2002 (147) E.L.T. 457 (Tri. - Del.) (2) Shree Prakash Textiles (Guj.) Ltd. v. CCE, Ahmedabad, 2004 (169) E.L.T. 162 (Tri. - Mumbai) (3) CCE, Ahmedabad v. Babu Textile Industries, 2003 (158) E.L.T. 215 (Tri. - Mumbai); and (4) CCE, Ahmedabad v. Arcoy Industries, 2004 (170) E.L.T. 507 (Tri. - Mumbai). of the Tribunal in which it has been held that the assessee is entitled to refund of the amount deposited if the assessee has gone out of the Modvat Scheme or their unit is closed. Aggrieved against the order of the Tribunal, Revenue filed C.E.A. No. 5/2006 in the High Court of Karnataka at Bangalore. The High Court by its impugned order has affirmed the order of the Tribunal and dismissed C.E.A. No. 5/2006 filed by the Revenue. Learned ASG appearing for the Union of India fairly concedes that those decisions of the Tribunal, which were relied upon by the Tribunal, have not been appealed against. In view of the concession made by the Learned ASG, this special leave petition is dismissed. 10. Thus from the aforesaid, it is mandated that refund has to be granted when either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of credit and any decision to the contrary was unsustainable. In arriving at the said ratio in law it followed the decisions of the Hon ble Punjab and Haryana High Court in the case of Commissioner Shree Krishna Paper Mills Industries Ltd. C.E.A. No.36 of 2019 (OPM) decided on 11.12.2019 wherein refund of credit on account of closure of unit and surrender of licence was allowed to be paid in cash. Hon ble Rajasthan High Court in the following cases also allowed refund of unutilized Cenvat Credit in cash (i) Lav Kush Textiles V. CCE, Jaipur 2017(353) E.L.T. 417 (Raj) (ii) Welcure Drugs and Pharma Ltd. V. CCE 2018(15) GSTL- 257 (Raj). 14. To similar effect is the Tribunal s decision in the case of Commr. of C. Ex. Commr.(Appeals),Tirupati V. Kores (India) Ltd-2011(22) STR-361T, allowing refund of Cenvat Credit lying with the assessee upon closure of the factory. 15. In view of the fact that right to availment of Cenvat Credit is a vested right (Eicher Tractors V. UOI 1999 (106) E.L.T.-3 SC, Samtel India Ltd. V. Commissioner 2003(155) E.L.T. 14 SC), which accrues to a manufacturer, the fact of closure of business leading to non-utilization thereof, cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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