TaxTMI 
TaxTMI 
TaxTMI 
2019 (12) TMI 1060
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....is bench who, by Final Order No. A/30912-30913/2016 remanded the matter to the original authority. Paragraphs 9-14 of this order are reproduced as below: "9. I have heard both sides. The counsel for appellant relies upon the decision laid by Hon'ble High Court of Madhya Pradesh in STI India Ltd. The said decision was referred by the Hon'ble High Court of Madras in the case of CUE Vs Celebrity Designs India (P) Ltd. The decision of the Hon'ble High Court of Madras being more recent and having considered the judgment laid in STI India Ltd case, I humbly follow the decision laid by the Hon'ble Madras High Court in the case of Celebrity Designs India Pvt Ltd., case and hold that the refund claim filed beyond the period of one year from the relevant date is time barred. 10. The question then arises what is the relevant date. The appellant submits that refund in respect of few of the exports is within time if calculated on the basis of the finding in the impugned order regarding the issue of relevant date. In the impugned order, the first appellate authority has observed that the date on which the goods enter the SEZ should be taken as relevant date for the purposes computing the l....
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....d of the case, the appellant cannot contend that the unit is closed down and that therefore entire amount has to be refunded overlooking the period of limitation. Therefore this prayer of the appellant that refund is to be granted as the unit is unoperational/closed down is not acceptable, and hence disallowed. 13. From the fore going discussions, the matter is remanded to the adjudicating authority to verify whether claim in respect of any export would be within the period of limitation, taking the relevant date being the date when the goods entered the SEZ. The impugned order is set aside and remanded to the original authority with the above observations. 14. In the result, the appeal is allowed by way of remand." 3. In pursuance of this final order, the original authority in the denovo proceedings by OIO No.188/REF/2016-17 dt.28.04.2017 allowed the refund claims to the extent they were not time barred. Therefore, the issue has reached finality to this extent. 4. The present round of litigation is with respect to a new refund claim under Rule 5 of CCR, 2004 filed by the appellant on 11.05.2017 for an amount of Rs. 32,24,145/- on the ground that their factory was closed ....
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.... not be used for any reason. In that context, the Hon'ble High Court of Karnataka had, in the case of Slovak India Trading Company Pvt Ltd [2006 (201) ELT 559 (Kar)] as well as Hon'ble High Court of Rajasthan in the case of Lav Kush Textiles [2017 (353) ELT 417 (Raj)] and Welcur Drugs and Pharmaceuticals Ltd [2018 (15) GSTL 257 (Raj)] held that refund should be available even if the appellant is not able to use Cenvat credit on account of closure of factory. After 01.04.2012, however, the clause 'where for any reason such adjustment has not been possible' has been deleted. Therefore, the appellant was not entitled to refund of Cenvat credit on this ground. The refund application in this case was filed on 11.05.2017 by which time the amended provisions were in vogue. Thus holding, the learned first appellate authority allowed the department's appeal and rejected the appellant's claim of refund. 6. The present appeal is filed by the appellant on the following grounds: a. The learned Commissioner (Appeals-I) erred in passing the impugned order without considering the cross objections filed by the Appellant. Thereby, the authority violated the principles of natural justice. It is ....
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....ring the course of appeal proceedings." 7. I have considered the arguments on both sides and perused the records. The short point to be decided is whether the application for refund of Cenvat credit under Rule 5 of CCR, 2004 could be sanctioned after 01.04.2012 on the ground that the factory has been closed after a period of six years from the closure of such factory or otherwise. The appellant's case is only that they had accumulated Cenvat credit prior to the amendment and that the refund claim was filed much later and hence, they are entitled to the refund of Cenvat credit on the closure of the factory. On the question of limitation, it is the claim of the appellant that as another refund claim seeking refund of unutilized Cenvat credit for another part of the amount on another ground was already pending at various judicial fora, they could not file any second refund claim. 8. I find when the Rule 5 of CCR, 2004 was amended w.e.f. 01.04.2012 there is no saving clause indicating that with respect to credits which were accumulated prior to this date the new provisions do not apply. I have also considered the provisions in General Clauses Act, 1977. Section 6 of which reads as ....