2016 (12) TMI 528

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....id twice; initially on 31.03.1999 and later between 05.07.1999 to 15.07.1999. The refund claim was rejected by the Adjudicating Authority. Aggrieved by the said order, the Appellants filed an appeal before the learned Commissioner (Appeals), who has allowed the refund of Rs. 3,42,195/- by way of credit in their Cenvat account. Against the said order, the present appeal. 3. The learned Advocate Shri S.J. Vyas for the Appellant submitted that even though the Appellant was allowed refund, but direction to pay it by re-crediting their CENVAT account, is erroneous. It is his contention that their factory has been closed since 2003 and they had also surrendered excise registration, hence, the CENVAT credit account is not in operation. In such ....

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....uch scenario, the Larger Bench observed that the credit was never utilized for payment of duty and such amount paid as duty was not involved in the claim of refund. He has vehemently argued that the facts in the present case, therefore, are not comparable. Hence, the refund of the amount of duty paid twice, accordingly, eligible to refund under Section 11B of Central Excise Act, 1944. Similarly, the learned Advocate sought to distinguish the judgment of this Tribunal in the case of Saroj Metal Works Pvt. Ltd VS CCE Bhopal - 2005 (189) ELT 435 (Tri-Del), Birla Corporation Ltd Vs CCE Pune-I 2011 (274) ELT 529 (Tri-Mum). 4. Per contra, the learned Authorized Representative for the Revenue Mr.G.P. Thomas submitted in the case of Gauri Plasti....

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....teel Strips case (supra) and also the judgment of the Hon'ble Supreme Court upholding the Purvi Fabrics & Texturise P Ltd (supra). Therefore, the same cannot be considered as binding precedent. 5. Heard both sides and perused the records. The short question involved for determination is: whether the Appellants are entitled for refund amount in cash instead of credit in their CENVAT account, as directed by the learned Commissioner (Appeals). I find that the issue has been considered at length by the Larger Bench in Steel Strips case (supra). It is the contention of the learned Advocate that the circumstances involved in Steel Strips case (supra) are not comparable to the facts of the present case, hence cannot be relied upon. I do not....

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....nceivable. Therefore, present reference is to be answered negatively and in favour of Revenue since refund of unutilized credit is only permissible in case of export of goods and for no other reason whatsoever that may be. As has been stated earlier that equity, 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." 7. From the aforesaid observation of the Larger Bench, it is very much clear that the refund cannot be allowed in cash. Also, I find that a similar view has been expressed by the Division of the Tribunal in the case of Purvi Fabrics & Texturiser (P) Ltd (supra), wh....