TMI Blog2023 (8) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that the Division Bench of the Honourable High Court of Karnataka in the said case took a view that there is no express prohibition in Rule 5 to refund the unutilised CENVAT credit. The revenue filed an appeal against such decision before the Honourable Apex court, and on the basis of the representation made by ASG who appeared on behalf of the Union of India that in similar decisions passed by the Tribunal, the revenue had not filed any appeal, the Honourable Apex Court had dismissed the appeal filed by the revenue. Thus there was no declaration of law under Article 141 of the Constitution of India in the said case. After adverting to various decisions on the point the Hon ble High Court of Bombay held that the refund cannot be granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant sold their factory to M/s.M.N. Pharmaceutical and they have ceased to be the manufacturer. The refund claim is for refund of the unutilised credit lying in the CENVAT account. The decision in the case of Union of India vs Slovak India Trading Company Ltd. reported in 2008 (223) was referred to by the learned counsel for the appellant to submit that the appellant would be eligible for refund. However, the Ld. counsel submitted by the recent decision of the Tribunal in the case of Gauri Plasticulture Pvt Ltd. Vs Commissioner of Customs Excise, Indore 2019 (30) GSTL 224 (Bom.), the issue stands covered against the appellant and that the Honourable High Court in the said judgement had also considered the decision of the Honourable Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et anchor of Mr. Patil s arguments is the judgment of the earlier Division Bench of this Court and that is based on the view taken by the High Court of Karnataka. The High Court of Karnataka has not discussed the scheme of Cenvat credit in details. The South Zonal Bench of the CESTAT in Slovak India (supra) considered the case of refund of unutilised Cenvat credit on account of closure of the factory of the said Slovak India. The Commissioner (Appeals) took the view that there is no provision in Rule 5 of the Cenvat Credit Rules to grant cash refund. After being approached, what the CESTAT observed is that there is a consistent view taken by the Tribunal that such claim is eligible and the assessee can seek refund when it goes out of the Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. The factory is closed and the inputs were not used in the manufacture of a final product is, thus, overlooked. So long as the assessee is a manufacturer even if his factory is closed, the input credit was available, is thus the view. Hence, the refund was held to be permissible. 33 . When the matter was carried to the Hon ble Supreme Court by the Revenue, the Hon ble Supreme Court noted the concession of the Learned Additional Solicitor General. That concession is that the views of the Tribunals to the aforesaid effect have not been appealed against by the Revenue/Union of India. Pertinently, there is no concession by the Additional Solicitor General of India on the point of law. Hence, going by this concession on fact, the Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .S.T.L. 257. There, the Hon ble Rajasthan High Court concluded that the Revenue cannot seek to urge before that High Court that the view taken by four different High Courts approving the order of CESTAT has lost its persuasive value, particularly when the Special Leave Petitions against the view taken by four different High Courts were either not filed or filed but not entertained. Thus, the Tribunals have taken a consistent view and the Revenue could not succeed in having that set aside. It is in these circumstances, the Rajasthan High Court negatived the contention of the Revenue that the Tribunal under the jurisdiction of that High Court could have distinguished the orders and judgments of its Benches. That was found to be contrary to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Udaipur Udyog Limited v. Commissioner of Central Excise, 2001 (130) E.L.T. 996 (sic). In that case, the Tribunal followed the principles laid down in its prior decision and held that the Modvat credit was admissible. A civil appeal was preferred to the Hon ble Supreme Court, but that was dismissed as not pressed. That is because the judgment relied upon by the Tribunal in the case of J.K. Udaipur Udyog Limited (supra) and the Commissioner of Central Excise, Chennai v. Pepsico India Holdings Limited 2001 (130) E.L.T. 193 (Tri.) was accepted by the Chief Commissioner of Central Excise, Chennai. In these circumstances, the Special Leave Petition by Birla Corporation Limited came to be allowed. The Hon ble Supreme Court held that when same ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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