2017 (12) TMI 10

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....tence of the Department, later as the issue was decided in their favour, accordingly, they filed the refund claims. The refund claimswere rejected by the adjudicating authority and aggrieved by the said order they filed appeal before the Ld. Commissioner (Appeals), who in turn, rejected their Appeal. Hence the present appeal. 4. Ld. Advocate Sh. Kansara for the appellant submits that the entire amount should have been directed to be paid in cash by the Ld. Commissioner (Appeals) since the credit now allowed as refund, cannot be utilized as their factory had been closed. It is his contention that in the event the cenvat credit cannot be utilized, there is no point in allowing the refund of cenvat credit through crediting their CENVAT accoun....

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....actory has now been closed. I find that to resolve the conflicting opinions on the subject a reference was made to the Larger Bench in Steel Strips Case (supra). The Larger Bench formulated the reference/question as follows: "whether in cases where either on account of coercion by the Department or otherwise, the assessee pays the duty through PLA account, in spite of having sufficient balance in the modvat/cenvat credit, on the factory or unit becoming inoperative and there being no likelihood of restarting the production, can such assessee be entitled for refund of the credit amount under the provisions of law in force. [Ref : Para 30 of the referral order]. 1.1 The referring bench was of the opinion that law does not permit cash refu....

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....he 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 n....

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....lity against Modvat Account. That is required to be carried out In accordance with law and unadjusted amount is not expressly permitted to be refunded. In absence of express provision to grant refund, that is difficult to entertain except in the case of export. There cannot be presumption that in the absence of debarment to make refund in other cases that is permissible. Refund results in outflow from treasury, which needs sanction of law and an order of refund for such purpose is sine qua non. Law has only recognized the event of export of goods for refund of Modvat credit as has been rightly pleaded by Revenue and present reference is neither the case of otherwise due of the refund nor the case of exported goods. Similarly absence of expr....