TaxTMI 
TaxTMI 
TaxTMI 
2017 (1) TMI 415
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..../- under rule 173Q of Central Excise Rules, 1944 which was confirmed by the first appellate authority. Appellant carried the matter to the Tribunal which confirmed the demand while reducing the penalty to Rs. 1,00,000/-. Appellant claims that Rs. 1,09,315/- was paid as pre-deposit at various stages of appeal and the balance of duty of Rs. 81,307/- as well as penalty after the order of the Tribunal. An application for rectification of mistake was rejected by the Tribunal. 3. Appellant then filed a refund claim for the MODVAT credit of Rs. 1,70,621/- lying unutilised as on date of intimation of closure in February 2007 which was rejected and which rejection was upheld in the impugned order. 4. It is contended that the rejection of claim has travelled beyond the notice which proposed rejection on grounds of limitation, failure to evidence payment under protest and insufficiency of original documents filed in support of the claim by rejecting the claim on the ground that there had been no payment in excess to warrant refund. Their primary contention is that they are entitled to cash refund of accumulated credit at the time of closure and sale of factory of production. Reliance has be....
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.... prevail, in case of dispute with the Tribunal's decision but we find that Larger Bench decision of the Tribunal, which has resolved the disputed issue in favour of the Revenue, was duly aware of the Hon'ble Karnataka High Court decision, as confirmed by the Hon'ble Supreme Court. As such, the Larger Bench decision stands given by considering the Hon'ble Karnataka High Court, and subsequent confirmation of the same by the Hon'ble Supreme Court. Further, Tribunal being a creature of the Statute cannot go beyond the provisions of the Act and can't exercise power which are not available to it like writ jurisdiction powers. Judicial discipline requires us to follow the law declared by the Larger Bench's of the Tribunal. We also note that the insistence of the learned Advocate on the fact that appeal filed by the Revenue before Hon'ble Supreme Court in the case of Union of India vs. Slovak India Trading Co. Pvt. Ltd. (supra) stands dismissed by the Hon'ble Supreme Court and as such it is the declaration of law by the Hon'ble Supreme Court which should be followed, is not appropriate. Apart from the fact that the dismissal of the appeal by the Hon&....
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....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 the three questions as framed in para 17 against the Revenue and in favour of the assessee.' 12. The absence of a provision for refund also implies the absence of a mechanism for processing a refund claim. The safeguards, conditions and limitations that are specified in a mechanism designed for the specifically permitted situation of refunds may not necessarily apply to the situation of a manufacturer who closes the factory of production. It could also well lead to claims by functioning undertakings which would throw the entire scheme into disarray. I notice the Hon'ble High Court of Karnataka has merely endorsed the principle of refund as ordered by the Tribunal without examining the applicability of the safeg....
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....0) S.T.R. 101 (Kar.). According to the Assessee, Rule 5 of the Central Excise Rules, 2002 was invokable on the ground that the decision of Hon'ble High Court of Karnataka was confirmed by the Apex Court. But the Referring Bench observed that substantive provision of the statute in respect of refund was not subject matter of scrutiny in the said judgment and appeal preferred by Revenue was dismissed on the concession of learned Additional Solicitor General on the ground that the decisions in Eicher Tractors v. CCE, Allahabad, reported in 2002 (147) E.L.T. 457, Shree Prakash Textiles (Guj.) Ltd. v. CCE, Ahmedabad, reported in 2004 (169) E.L.T. 162; CCE, Ahmedabad v. Babu Textile Industries, reported in 2003 (158) E.L.T. 215; and CCE, Ahmedabad v. Arcoy Industries, reported in 2004 (170) E.L.T. 507, which were relied upon by the Tribunal while deciding the matter, were not appealed against by Revenue. 1.3 The Referring Bench noticed that the decision of the Larger Bench in Gauri Plasticulture (P) Ltd. v. CCE, Indore - 2006 (202) E.L.T. 199 (T.-LB.) permitting refund of unutilized credit, in cash was without examination of the law relating to Modvat and object of Modvat credit procedu....
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....liance of an enactment is insisted, where mandatory and directory requirements are lumped together, for in such a case, if mandatory requirements are complied with, it will be proper to say that the enactment has been substantially complied with notwithstanding the non-compliance of directory requirements. In cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty. The doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. Substance and Essence of Statute are Paramount Considerations 5.9 The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a prec....