2011 (6) TMI 531

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.... duty as provided under Notification No. 30/2004 dated 09.07.2004 with effect from July, 2004. Prior to July, 2004 the appellant was paying excise duty on the final product manufactured and removed by them. They were also availing CENVAT credit  against the inputs and capital goods received in their factory which are used in the manufacturing of their final products.  On the date of opting out of modvat scheme to exemption scheme under Notification No. 30/04 dated 09.07.2004 there was unutilized accumulated CENVAT credit  balance of Rs.31,20,523/- was lying in their CENVAT credit  account.The appellants filed the refund claim of the said account as per Rule 5 of the CENVAT Credit Rules, 2004 which was denied by both the ....

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....ied on the decision of this Tribunal in the case of Shree Prakash Textiles (Guj.) Ltd. v. CCE Ahmedabad - 2004 (169) ELT 162 (Tri. - Mumbai) and in the case of Bombay Dyeing & Manufacturing Co. Ltd. vide Order No. A/254/2007/C-I (EB) dated 10.04.2007. Therefore, he submitted that their refund claim is maintainable. In addition to this submission Shri Prakash Shah submitted that the appellant has CENVAT credit  involved in the inputs work-in process and finished goods lying in their factory on the date of opting out of MODVAT scheme i.e. on 09.04.2004. 4. Shri H.B. Negi, learned SDR appearing on behalf of the Revenue submitted that it is not coming out with regard to whether the appellant has reversed the CENVAT credit involved in inp....

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....a High Court has answered the references in paragraph 5 of the order which is reproduced herein below:- "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 of 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 th....