2016 (11) TMI 472

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... Solectron Centrum Electronics Ltd.) are undertaking the business of manufacturing electronic goods such as hybrid micro circuits, resistors, etc. Appellants are operating DTA units as well as EHTP unit under 100% EOU scheme. The audit party vide Note No.243/2004 demanded the payment of duty to an extent of Rs. 22,21,477/- on the objections raised therein and the same was paid by the appellant under protest and later on refund was filed by the appellant in terms of Section 11B of the Central Excise Act, 1944 vide application dated 21.12.2004. The refund was rejected vide Order-in-Original dated 31.3.2005 and appeal was preferred before the Commissioner of Central Excise (Appeals) and the Commissioner (A) rejected the appeal vide order dated....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ries Ltd. 2015 (322) E.L.T. 834 (A.P) c) CCE V. Apex Drugs & Intermediaries Ltd. 2014 (314) E.L.T. 729 (Tri.-Bang.) d) CCE V. Jain Vanguard Polybutlene Ltd. 2010 (256) E.L.T. 523 (Bom.) e) Century Rayon  Twisting Unit V. CCE, 2015 (325) E.L.T. 205 (Tri.-Mum) f) CIT V. Thana Electricity Supply Ltd. 1994 (206) ITR 727 (Bom.) The Hon'ble High Court of Karnataka in the case of Union of India V. Slovak Trading Co. Pvt. Ltd. cited supra analysed Rule 5 of the Cenvat Credit Rules 2002 (which is identically worded to Rule 5 of the Cenvat Credit Rules 2004) and answered the following substantial question of laws, which are impugned in the instant case also: a) Whether under the facts and circumstances of the case the Tribunal is rig....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....is no longer res integra and has been settled by the Apex Court in Union of India V. Slovak Trading Co. Pvt. Ltd. cited supra. It was held that Rule 5 of the Cenvat Credit Rules did not expressly prohibit refund of unutilized cenvat credit where there was no manufacture due to closure of factory. Moreover since the assessee has come out of modvat scheme, refund of unutilized cenvat credit had to be made as per Section 11B of the Central Excise Act. The learned counsel further submitted that the judgment of the Karnataka High Court which was affirmed by the Supreme Court and the same has been relied upon by the Tribunal in the case of CCE, Hyderabad Vs. Apex Drugs & Intermediates Ltd. reported in 2014 (314) E.L.T. 729 and the same has been a....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....le 5 of the Cenvat Credit Rules 2004 which is reproduced herein below: "Where any input or input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the cenvat credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of, (i) Duty of excise on any final product cleared for home consumption or for export on payment of duty, or (ii) Service tax on output service, and where for any reason such adjustment is not possible, the manufacturer or the prov....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....en followed in number of cases by various Tribunals as cited supra. On the other hand the judgments relied upon by the learned AR is not applicable in the facts and circumstances of the present case when the jurisdictional High Court has allowed the refund of unutilized cenvat credit under Rule 5 of the Cenvat Credit Rules 2004 and the same has been affirmed by the Hon'ble Supreme Court. 6.3 Further the learned counsel for the appellant submitted that the appellants are entitled to claim interest on the delayed refund from the expiry of three months from the date of filing of the refund claim application and in support of this he relied upon the judgment of the Hon'ble Supreme Court in the case of Ranbaxy Laboratories vs. UOI reported in 2....