2016 (1) TMI 1057

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....se filament yarn falling under Chapter Heading 54 of CETA, 1985 and were availing Cenvat credit for the duties paid on various capital goods and input services used in or in relation to the manufacturing process. The appellant after carrying out business for a period of 2 years closed down the operation as he found the business of twisting yarn was not commercially viable and accordingly surrendered their excise registration certificate vide letter dated 15-5-2007 addressed to the Asst. Commissioner of Central Excise, Kalyan. Thereafter, the appellant filed a refund application claiming refund of unutilised Cenvat credit of Rs. 85974/-. The Asst. Commissioner had rejected the refund of the appellant vide order dated 19-10-2007 on the ground....

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.... closure of factory - Moreover, since assessee has come out of Cenvat scheme, refund of unutilised credit has to be made - Section 11B of Central Excise Act, 1944 - Rule 5 ibid. [para 5]" This decision was upheld by the Apex Court by dismissing the SLP of the department as reported in 2008 (223) E.L.T. A170 (S.C.). 4. The appellant also relied upon CCE Tirupati v. Kores (India) Ltd. [2009 (245) E.L.T. 411 (Tri.-Bang.) = 2011 (22) S.T.R. 361 (Tribunal)] wherein it has been held as under : "Refund of Cenvat/Modvat - Unutilised credit lying with assessee on account of closure of factory - Well settled law that amount of credit lying unutilised on account of closure of factory should be refunded - Rule 5 of Cenvat Credit Rul....

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....ced herein : RULE 5. Refund of CENVAT Credit. - (1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by notification in the Official Gazette : Refund amount = (Export turnover of goods + Export turnover of services) x Net Cenvat credit Total turnover Where, - (A)    "Refund amount" means the maximum refund that is....

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....bsp;   all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed. (2) This rule shall apply to exports made on or after the 1st April, 2012 : Provided that the refund may be claimed under this rule, as existing, prior to the commencement of the CENVAT Credit (Third Amendment) Rules, 2012, within a period of one year from such commencement : Provided further that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such ....