2017 (3) TMI 1151

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....efund claim was granted by the Adjudicating Authority by re-credit in CENVAT Credit Account and not by cash. Aggrieved by the said order, the Appellants filed an appeal before the learned Commissioner (Appeals), who in turn, held that refund cannot be allowed in cash even in a situation where at the time of grant of refund the unit is either totally closed or it is not in a position to utilize the CENVAT credit for any reason. Against the said order, the appellant filed these appeals before this forum. 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 b....

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.... of unutilized amount in cash. The credit remained unutilized since the Department had forced the Assessee to pay the duty through PLA. In such 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, 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 Author....

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....(supra), cannot be considered as good law being contrary to the judgment of Larger Bench in Steel 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 (supr....

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....implied bar for refund. When right to refund does not accrue under law, claim thereof is inconceivable. 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 ....