2020 (10) TMI 908 - AT - Central Excise

Case on Cenvat Credit Refund Post-GST Remanded for Supreme Court Decision

Aia Engeneering Ltd Versus C.C.E. -Ahmedabad-I

The Tribunal remanded the case regarding the refund of accumulated unutilized Cenvat Credit post-GST implementation to the Adjudicating Authority, ... Refund of accumulated unutilized Cenvat Credit of Krishi Kalyan Cess - HELD THAT:- On the subject issue much water flown and this tribunal’s two larger bench judgments one in the case of M/S. GAURI PLASTICULTURE P. LTD., BOMBAY DYEING & MANUFACTURING CO. LTD., M/S. SIMPLEX MILLS CO. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, INDORE, THE COMMISSIONER OF CENTRAL EXCISE, MUMBAI IV, THE UNION OF INDIA THROUGH THE COMMISSIONER OF CENTRAL EXCISE MUMBAI I [2019 (6) TMI 820 - BOMBAY HIGH COURT] and in case of STEEL STRIPS VERSUS COMMISSIONER OF CENTRAL EXCISE, LUDHIANA [2011 (5) TMI 111 - CESTAT, NEW DELHI] are contradictory - There are various high courts judgments such as UNION OF INDIA VERSUS SLOVAK INDIA TRADING CO. PVT. LTD. [2006 (7) TMI 9 - KARNATAKA HIGH COURT] from Karnataka High Court, M/S. WELCURE DRUGS AND PHARMACEUTICALS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR [2018 (8) TMI 1169 - RAJASTHAN HIGH COURT] of Hon’ble Rajasthan High Court and COMMISSIONER OF C. EX., NASIK VERSUS JAIN VANGUARD POLYBUTLENE LTD. [2010 (6) TMI 171 - BOMBAY HIGH COURT] from Bombay High Court - Now the larger bench of the Bombay High Court in the case of M/s. Gauri Plasticulture Pvt. Ltd. though after considering the SLOVAK INDIA TRADING CO. PVT. LTD. of Karnataka High Court which was upheld by the Hon’ble Supreme Court taken a view that accumulated unutilized Cenvat Credit cannot be refunded. The Larger Bench judgment of the Bombay High Court has been challenged before the Hon’ble Supreme Court in SLP(C) No. 007390/2020 registered on 09.06.2020 which is pending at present. In this position of law, no purpose will be served if any order is passed by this tribunal when the matter is seized with the Hon’ble Supreme Court. Matter to the Adjudicating Authority for passing the denovo order after the outcome of Hon’ble Supreme Court in the case of BOMBAY DYEING & MANUFACTURING CO. LTD. V/s. CCE in the aforementioned SLP - appeal allowed by way of remand. Issues Involved:Refund of accumulated unutilized Cenvat Credit of Krishi Kalyan Cess post-GST implementation.Analysis:1. The appellant claimed a refund of accumulated unutilized Cenvat Credit due to GST implementation. Citing various judgments, the appellant argued in favor of the refund, including the Gujarat High Court's decision in M/s. ISHAN COPPER PVT. LTD.2. The revenue, represented by the Superintendent, opposed the refund, relying on judgments such as CELLULAR OPERATORS ASSOCIATION OF INDIA and M/s. GAURIPLASTICULTURE PVT LTD. The revenue highlighted the decision of the Larger Bench of the Bombay High Court, which held that refund of unutilized credit is not permissible without a statutory provision.3. The Tribunal noted conflicting judgments, including those of its Larger Benches in the cases of M/s. Gauri Plasticulture Pvt. Ltd. and M/s. Steel Strips. The Tribunal acknowledged high court decisions from Karnataka, Rajasthan, and Bombay on similar issues.4. Considering the conflicting precedents and the pending challenge of the Bombay High Court's Larger Bench judgment in the Supreme Court, the Tribunal decided to set aside the impugned order and remand the matter to the Adjudicating Authority. The Tribunal deemed it appropriate to await the Supreme Court's decision in the case of BOMBAY DYEING & MANUFACTURING CO. LTD. V/s. CCE before making a final determination.5. The Tribunal allowed the appeal by remanding the matter to the Adjudicating Authority, pending the Supreme Court's decision, as pronounced on 29.10.2020.