At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONORABLE JUSTICE: RAMESH NAIR
For Petitioner: D.B. Shroff, Senior Advocate., Rakesh Mandavkar and Anita Dubey, Advocates And For Respondents: S.J. Sahu, A.C. (A.R.)
1. The appeal is directed against the Order-in-Appeal No. MI/AV/306/2010 dt. 28.10.2010 passed by the Commissioner (Appeals) Central Excise Mumbai-I, whereby the Ld. Commissioner has upheld the adjudication order of rejection of refund claim filed under Rule 5 of Cenvat Credit Rules, 2004. The facts of the case are that the Appellant were engaged in manufacture of Textile articles and were also exporting the finished goods under Bond/Letter of Undertaking. As they were not in a position to utilize the credit therefore an amount of Rs. 13,19,885/- got accumulated in their cenvat credit account. Pursuant to closure of the Appellants Unit, they had filed refund claim of Modvat/ Cenvat in terms of Rule 5 of Cenvat Credit Rules, 2002 read withdt. 01.03.2002 which was lying in their credit account. The Appellant were served show cause notice dt. 19.03.2008 wherein it was proposed to reject the claim on the ground that the refund of credit is admissible only in case where the goods has been exported and that such refund claim has to be filed alongwith proof of due exportation and relevant extract of the records maintained under the said rule or deemed credit register maintained in respect of the textile fabrics. Vide order dt. 07.04.2008 the refund claim was rejected. The Appellant filed appeal before the Commissioner (Appeals) who rejected the appeal filed by the Appellant. Hence the present appeal.
2. Shri D.B. Shroff, the Ld. Sr. Counsel submits that the Ld. Commissioner (Appeals) has wrongly relied upon the Larger bench judgment in case of Gauri Plasticulture (P) Ltd. Vs. CCE, Indore : 2006 (202) ELT 199 (TRI- LB) . He submits that the lower authorities have wrongly rejected the claim despite the fact that the accumulated credit was in respect of inputs and input services used in export of goods. That the refund of credit is available where for any reason the assessee is not able to utilize the credit and hence the refund is admissible to them. That all the facts and figures were submitted to the department and the credit had arisen due to export of goods. He submits that ratio of Honble High Court of Karnataka judgment in case of UOI Vs. Slovak India Trading Co. Pvt. Ltd : 2006 (201) ELT 559 (KAR) is applicable in the present case. That even the Honble Bombay High Court in case of CCE, Nashik vs. Jain Vanguard Polybutlene Ltd. - 2010 (256) ELT 523 (Bom.) has also relied upon the Karnataka High Court judgment (supra). Hence the Larger bench judgment cannot be relied upon.
3. On the other hand, Shri S.J. Sahu, Ld. 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 records. I find that the revenue has relied upon the Larger bench judgment in case of Gauri Plasticulture (P) Ltd. Vs. CCE, Indore : 2006 (202) ELT 199 (TRI- LB) . However, I find that the judgment of Honble High Court of Karnataka in case of M/s Slovak India (supra) was cited before the Larger Bench of Tribunal in case of M/s Gauri Plasticulture : 2006 (202) ELT 199 , but the same was not discussed while rendering the Larger Bench judgment. Also in case of CCE, Nashik vs. Jain Vanguard Polybutlene Ltd. - 2010 (256) ELT 523 (Bom.) the Honble High Court held as under:-
Order]. - P.C.: Perused Appeal.
Heard Learned Senior Counsel appearing for the Appellant-Revenue and Mr. Patil appearing for the Respondents.
2. Learned Sr. Counsel for Revenue has relied upon the judgment of the High Court The Tribunal of Karnataka, in the case of Union of India v. Slovak India Trading Co. Pvt. Ltd.: 2006 (201) E.L.T. 559 (Kar.): 2008 (10) S.T.R. 101 (Kar.) , wherein it is held that:-
5. There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. Admittedly, in the case on hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed that 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.
3. The above matter of Special Leave Petition. The Special Leave judgment was subject Petition had been dismissed by a reasoned order [2008 (223) E.L.T. A170 (S.C.)]. In the said order, the statement of the Learned Additional Solicitor General was recorded by the Apex Court, who had conceded before the Apex Court that the various judgments relied upon by the Karnataka High Court were not appealed against by the Revenue. Notwithstanding this concession, it is not possible to say that the S.L.P was dismissed in view of the concession given by the Additional Solicitor General. No concession was given with regard to the correctness of the judgment of Karnataka High Court. This judgment was confirmed by the Apex Court on its own merits for the reasons stated therein. The Tribunal was wrong in observing that the S.L.P was dismissed because the Learned Additional Solicitor General had conceded the correctness of the High Courts judgment. What was conceded by the Learned Additional Solicitor General was that the various judgments relied upon by the Court were not appealed against and not the correctness of the judgment of Karnataka High Court. The Apex Court in Birla Corporation Ltd. v. Commissioner of Central Excise : 2005 (186) E.L.T. 266 (S.C.) held that when question arising for consideration on facts almost identical to previous case, Revenue cannot be allowed to take different view. Following this principle, we cannot take any other view other than the one approved by the Apex Court, which came be
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fore it from the Karnataka High Court. 4. view of this In the above matter, Appeal is dismissed in limine with no order as to costs. 5. In view of above judgment of the Honble High Court of Mumbai which is jurisdictional court of this tribunal bench and with due respect to Larger Bench judgment in case of M/s Gauri Plasticluture above, I am of the view that the ratio of Judgment of Honble Karnataka High Court and the jurisdictional High Court i.e Honble High Court of Mumbai (supra) would be applicable. Thus I hold that the Appellants are eligible to the refund claim filed by them. The appeal is allowed with consequential relief to the Appellant.