2008 (6) TMI 487

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....horities holding Central Excise Registration No. (old) 1003040212, and was availing the Cenvat Credit on the inputs received by them for the manufacture of final products on which appropriate duty was discharged. The appellant closed their unit in 1996, on which date, there was a balance of Rs. 1454/- in the PLA account and Rs. 1,04,302/- in RG 23A Part-II account. The appellant filed a refund claim with the authorities on 26-5-2005 which was sanctioned, by the adjudicating authority. Aggrieved by such sanction of the refund, Revenue preferred an appeal before Commissioner (Appeals) who by the impugned order set aside the original order and allowed the appeal of the department. It is against this order the appellant is in appeal. The main c....

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....gment of Hon'ble High Court of Kamataka dated 7-7-2007 in the case of Slovak India Trading Co. Pvt. Ltd. reported in 2006 (201) E.L.T. 559 (Kar). The Larger Bench of the Tribunal in the aforesaid order had come to the conclusion that if because of the Department's action the assessee could not avail the Cenvat Credit in the period of dispute and later on by the time the dispute was settled in their favour but availment of use of Cenvat credit was not possible on account of any reason (closure of the factory or final product if exempted) then refund should be sanctioned in cash. The Tribunal on the same basic principles of equity, justice and good conscience had held if such refund in cash makes the assessee enrich because during the period ....

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....dvat Credit was available due to value based exemption availed by the assessee on reliance is placed on Tribunal's decision in the case of Nisma Aircon Inernational Ltd. reported in 2004 (177) E.L.T. 1046 (Tri.-Chennai). On the other hand the respondent assessee have vehemently contended that they have not availed value based exemption notification. Neither the Department nor the respondent assessee has produced any evidence in support of their respective contentions. Therefore this matter of fact remains unresolved. However this has no bearing on the decision in the present appeal." As against the above said findings, I find that the appellant in this case has not produced any evidence that the credit of the amount for which refund h....