TaxTMI 
TaxTMI 
2011 (6) TMI 608
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....ellant availed MODVAT credit of Rs.6,44,352/-. 3. The department initiated proceedings against them on the ground that the goods were not physically received in their factory premises. The proceedings were confirmed by the lower authorities. The Tribunal vide its Order No. A/500/SMB/C-III/2008 dated 6.6.2008 finally decided the matter in appellant's favour. Consequent to this, the appellant filed a refund claim along with interest. The lower adjudicating authority sanctioned the refund claim through CENVAT credit account and rejected the claim for the interest. The appellant challenged the same before the Commissioner (Appeals) who upheld the order of the original adjudicating authority. Hence, this appeal. 3. The contenti....
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....he case of export, where different has been paid through MODVAT. In the rejoinder, the learned Counsel submitted that the case cited by the learned JDR is not applicable to their case. The learned Counsel also cited a case law in the case of Commissioner of Central Excise Vs. Jain Vanguard Polybutleme Ltd. - 2010 (256) ELT 523 (Bom), wherein it was held that when question arising for consideration on fact almost identical to previous case, Revenue cannot be allowed to take different view. 5. I have carefully considered the submissions and perused the records. It is not in dispute that the appellants have paid the demand of CENVAT credit by debiting through CENVAT Credit Account, which they were alleged to have been wrongly availed ....
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....uity, justice and good conscience are the guiding factors for Civil Courts, no fiscal Courts are governed by these concepts, the present reference is bound to be answered in favour of Revenue and it is answered accordingly." From the above, it is clear that in case of duty paid through CENVAT Credit account, the refund is to be given through CENVAT credit. The case laws cited by the learned Counsel in the cases of Slovak India Trading Co. (supra), Ashok ARC (supra) & Manish Spinning Mills (supra) relates to refund in the case of Rule 5 of Central Excise Rules. When the judgments in the cases of Deepti Chemical (supra) and Birla Corporation Ltd. (supra) were passed, the decision of Larger Bench was not before the Tribuna....