TaxTMI 
TaxTMI 
2020 (12) TMI 753
X X X X Extracts X X X X
X X X X Extracts X X X X
....show cause notice to the appellant on the ground that neither the refund claim is covered under Section 11B of the Central Excise Act, 1944 nor under Rule 5 of the Cenvat Credit Rules, 2004. The appellant filed appeal before the ld. Commissioner (Appeals) who also rejected the same; therefore, the appellant is before me. 3.1 The ld. Counsel for the appellant submits that the issue, whether the appellant is entitled to refund of cenvat credit lying unutilized in their cenvat credit account on surrender of their Central Excise Registration can be refunded, has been decided by the Division Bench of this Tribunal in the case of M/s Shree Krishna Paper Mills & Ind. Ltd. vs. CCE & ST, Gurgaon vide Final Order No. 61626/2018 dt. 15.03.2018. The said order has been followed by this Tribunal in the case of M/s Ranjeev Steels Pvt Ltd vs. CCE & ST, Ludhiana vide Final Order No. 60452/2019 dt. 01.05.2019; therefore, they are entitled for refund claim. 3.2 He further submits that the appellant is entitled for interest on the amount of refund not sanctioned till date after three months from the date of filing of refund claim till its realization as held by Hon'ble Apex Court in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ernment for exports could not be arbitrarily and capriciously extrapolated for goods cleared for home consumption. The case law of Kusum Products (supra) was quoted in the impugned order to bring home the point that judicial authorities could not compel to formulate a policy decision to suit the purpose of a particular trader or manufacturer. It was the Government who was to provide different mode, not by intervention of the Court, but of its own accord. Since the Government had not provided the mode of refund of unutilized credit in case of closure of unit, the same would lapse. Ground no. 2 : Ratio of the case law of Nahar Industries Ltd v/s UOI - 2009 (235) ELT 22 (P&H) was not applicable to the present case as it dealt with simultaneous applicability of Notfn. nos. 29/2003-CE and 30/2003-CE, not refund of Cenvat credit lying unutilized on closure of factory. REBUTTAL: Ratio of Nahar Industries Ltd (supra) was applicable to the present case inasmuch as encashment of gratuitous payment of duty through Cenvat credit was disallowed, which the Appellant has sought by way of refund of unutilized accumulated Cenvat credit. Ground no. 3 : That the case law of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Auto Pvt. Ltd. V/S CCE & ST, Gurgaon-I - 2020 (372) ELT 452 (TriChd), after considering the judgment of Slovak India, had distinguished it and held that even if the litigant seeks relief under Rule 5 of CCR, the same would not be admissible post 01.04.2012 when the same was substituted w.e.f. 01.04.2012 and the revised statute did not include any reference to "any other reason‖. This is without prejudice to the fact that even otherwise Rule 5 was relevant only for refunds pertaining to exports and not in case of closure of a factory. Ground no. 4 : Decision in Steel Strips v/s CCE, Ludhiana - 2011 (269) ELT 257 (Tri-LB) has been overturned in Srinivasa Hair Industries v/s CCE, Chennai-II - 2016-TOIL-1203-CESTAT-MAD. REBUTTAL: Ratio of Steel Strips (supra) is applicable to the present case inasmuch as the same has been rendered by a Larger Bench and even though one of the members of the said Bench, sitting singly, has subsequently passed a contrary order in Srinivasa Hair (supra), the latter order has been passed without taking into consideration the former. Therefore, the former will have more persuasive value vis-àvis the latter. Further, in Srinivas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d as they are, without any intendment, regardless of the consequences. As per the ratio of this judgment also refund couldn't be sanctioned against the explicit provisions. A situation closely related to the subject case is dealt with under Rule 11(2) of CCR dealing with cases where an assessee opts to avail of exemption from the whole of the duty of excise leviable on goods manufactured by him under a notification based on the value or quantity of clearances in a financial year, wherein it has been provided that an assessee who has been taking CENVAT credit on inputs or input services before such option is exercised, shall be required to pay an amount equivalent to the CENVAT credit, if any, allowed to him in respect of inputs lying in stock or in process or contained in final products lying in stock on the date when such option is exercised and after deducting the said amount from the balance, if any, lying in his credit, the balance, if any, still remaining shall lapse and shall not be allowed to be utilized for payment of duty on any excisable goods, whether cleared for home consumption or for export. The clause of lapsing of credit in the said sub-rule clearly reflect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....credit lying unutilized at the time of surrender of the registration cannot be admitted. Admittedly, in the case in hand, the refund claim has been rejected under Rule 5 of Cenvat Credit Rules, 2004. Therefore, the said decision is of no help of the ld. A.R. 7.2 The ld. A.R. further submitted that as the decisions earlier relied upon by this Tribunal in the cases of M/s Shree Krishna Paper Mills & Ind. Ltd. (supra) and Rama Industries Ltd (supra) pertain to Rule 5 of the Cenvat Credit Rules prior to 01.04.2012. In such a situation, it would be appropriated to see the Rule 5 prior to 01.04.2012 and Rule 5 after 01.04.2012. For better appropriation, Rule 5 prior and after 01.04.2012 is extracted as under: "Rule 5 of Cenvat Credit Rules, 2004 prior to 01.04.2012 Rule 5. Refund of CENVAT credit:- Where any input or input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be al....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... relevant period; (C) "Export turnover of goods" means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking; (D) "Export turnover of services" means the value of the export service calculated in the following manner, namely:- Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period - advances received for export services for which the provision of service has not been completed during the relevant period; (E) "Total turnover" means sum total of the value of- (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of subrule (1) above and the value of all other services, during the relevant period; and (c) all inputs removed as such under sub-rule (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he decision of this Tribunal in the case of Phoenix Inds Ltd v/s CCE, Raigad - 2015 (330) E.L.T. 303 (Tri. - Mumbai) to say that in the said decision, this Tribunal after considering the decision of Jain Vanguard Polybutlene Ltd (supra) and Slovak India Trading Co. Pvt Ltd (supra) has held that the appellant is not entitled to refund claim of cenvat credit lying unutilized at the time of closer of the factory. 8.2 I have gone through the decision of this Tribunal in the case of M/s Shree Krishna Paper Mills & Ind. Ltd. (supra), wherein this Tribunal has relied upon the decision of Hon'ble High Court of Punjab & Haryana, which is a Jurisdictional High Court, in the case of Rama Industries Ltd (supra) wherein the Hon'ble High Court has held as under: "We have heard learned counsel for the parties and have perused the paper book with their able assistance. The matter is covered against the revenue by the Division Bench judgment of Karnataka High Court in the case of Union of India v. Slovak India Trading Co. Pvt. Ltd., 2006 (2001) E.L.T. 559 (Kar.), wherein it has been held that Rule 5 of Cenvat Credit Rules, 2002 (for brevity, "the Rules') in terms does not prohibit....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as under: 10.2 In the case of Sandeep Enterprises (supra), this Tribunal has held that whether the activity undertaken by the assessee amounts to manufacture or not, is a legal issue which can be raised at present stage. Therefore, the said decision is in favour of the assessee. In the case in hand, the issue of interest on delayed refund is also a legal issue and can be raised at any stage. Therefore, the said decision is of no help to the ld. A.R. 10.3 Further, in the case of DLF Ltd (supra), the appellant has raised alternate plea, which is not in the case in hand. 10.4 Further, in the case of Chennai Port Trust (supra), this Tribunal has held that the new grounds raised by the appellants are in nature of the new case put forward by the assessee for the first time before the Tribunal. Therefore, it was held by this Tribunal that such ground cannot be forwarded at appellate stage. 10.5 Further, in the case of BPCL (supra), this Tribunal has held that "we find that this being a question in law and the appellant have in the right to raise the issue at this level. However for the proper appropriation of facts and computation of refund due to the appell....