2018 (4) TMI 1155 - AT - Central Excise

Tribunal upholds appellant's right to claim refund of unutilised Cenvat credit upon factory closure

The Tribunal allowed the appeal, upholding the appellant's entitlement to claim a refund of unutilised Cenvat credit upon closing their factory and ... Refund of unutilised CENVAT credit - matter remanded on the ground that Revenue has submitted additional grounds/ evidences which were not submitted before the adjudicating authority, in terms of Rule 5(b) of Central Excise (Appeals) Rules, 2001, therefore, matter is to be reconsidered by the adjudicating authority - Held that: - in terms of Rule 5 of Central Excise (Appeals) Rules, 2001, the additional evidences placed before the Id. Commissioner (Appeals) are not admissible and the same cannot be the ground for remand the matter back to the adjudicating authority. Refund claim - closure of factory - CENVAT credit - Held that: - at no stage, it has been questioned to the appellant that for denial of Cenvat credit which are not entitled to them. Moreover, the Revenue collected the duty from the appellant. Although the Revenue was of the view that activity undertaken by the appellant does not amount to manufacture. At the stage of filing of refund claim, Revenue cannot correct their wrong doings. The issue of non-entitlement of Cenvat credit cannot be raised at the stage of entertaining refund claim without challenging the availment of Cenvat credit. Commissioner (Appeals) was not required to consider the appeal filed by the Revenue but chose to send the matter back to the adjudicating authority, which is not permissible in law - the order of the adjudicating authority for allowing the refund claim restored - appeal allowed. Issues:1. Appeal against the order remanding the matter back to the adjudicating authority for reconsideration of additional grounds.2. Admissibility of additional evidence at the appellate stage.3. Entitlement to claim refund of unutilised Cenvat credit on closure of factory and surrender of registration certificate.Analysis:1. The appellant appealed against the order remanding the matter back to the adjudicating authority. The Id. Commissioner (Appeals) had sent the matter back for reconsideration of additional grounds brought by the Revenue. The appellant contended that the Id. Commissioner (Appeals) did not assess the case's merits and merely remanded it, leading to the appeal.2. The issue of admissibility of additional evidence at the appellate stage was raised. The appellant argued that, as per Rule 5 of Central Excise (Appeals) Rules, 2001, additional evidence can only be admitted under specific circumstances. The grounds for admissibility were discussed, and it was concluded that the additional evidence submitted before the Id. Commissioner (Appeals) was not admissible under Rule 5.3. The main issue revolved around the appellant's entitlement to claim a refund of unutilised Cenvat credit upon closing their factory and surrendering the registration certificate. The appellant cited relevant case laws and judgments to support their claim, emphasizing that the Revenue's objection was not valid. The appellant's counsel argued that the decision in a specific case did not apply to their situation, and they should be entitled to the refund as granted by the adjudicating authority.4. The Tribunal analyzed the facts of the case, noting that the appellant had been manufacturing paper products and had availed Cenvat credit on inputs. Upon closing the factory and surrendering the registration, they filed a refund claim. The Tribunal found that the Revenue's argument that the activity did not amount to manufacture was not raised earlier, and the duty was collected from the appellant without challenging the Cenvat credit. The Tribunal concluded that the appellant was entitled to the refund claim as granted by the adjudicating authority.5. The Tribunal further discussed various case laws and judgments cited by both parties to support their arguments. It was highlighted that the facts of the case were distinct from previous decisions relied upon by the Revenue. Ultimately, the Tribunal set aside the impugned order, restoring the adjudicating authority's decision to allow the refund claim to the appellant.In conclusion, the Tribunal allowed the appeal, emphasizing the appellant's entitlement to claim the refund of unutilised Cenvat credit based on the closure of the factory and surrender of the registration certificate. The Tribunal found that the remanding of the matter back to the adjudicating authority was not permissible in law, and the appellant's claim was upheld.