TaxTMI 
TaxTMI 
2023 (5) TMI 892
X X X X Extracts X X X X
X X X X Extracts X X X X
....12/- was deposited on 05/5/2015 through e-payment Challan No. 0005347-05052015-500965 as excess deposit of Service Tax and refund claimed on the ground of unutilized Cenvat Credit. The Assistant Commissioner of Central Excise rejected the refund claim filed on the plea that of the ST-3 Return for the period October 2015 to March 2016, in column 13.1/13.1.4, no opening and closing balance of Cenvat Credit was available with the assessee, as was sought to be claimed by way of refund. 2.1 In appeal against impugned order of the Adjudicating Authority filed by the appellants, the Commissioner (Appeals) however, dismissed the said plea of non-reporting of the aforesaid amount as found to be not correct. He observed that the ST-3 Return (October 2015 to March 2016) clearly showed the opening and closing balance of Cenvat Credit. However, the Learned Commissioner (Appeals) rejected the said refund claim on the ground that the appellants were not eligible for refund under Rule 5B read with Notification 12/2014 - dated 3rd March, 2014 of the cenvat credit Rules, 2004, the Learned Commissioner (Appeals) held the view that the said refund can only be claimed in respect of Cenvat Credit taken....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tter was listed for hearing on 21st April 2023. I therefore, proceed to decide the appeal based on facts available on record. 5. The refund claim is filed by the Appellant for unutilized Cenvat Credit. It is observed that it has been rejected by both the lower Authorities on different grounds. The copy of the Show Cause Notice if any is not available on records neither does it appear to have been so issued, as appears from the case records. The benefit of representation in person for the Appellant is also not available to this Court. The question in the matter remains, is the assessee entitled for the impugned refund of Rs. 1,49,412/- rejected by the lower authority and said to be excess deposit of Service Tax, due to non-utilization of Cenvat Credit as per the Return for the period October 2015 to March 2016. It is the case of the appellants that in view of the extraordinary circumstances where the Appellant, providing said services in his individual capacity, expired on 03/02/2016, i.e. prior to submission of the Half Yearly ST-3 Return wherein un-utilized Cenvat Credit of Rs.1,49,412/- was duly reflected. That upon the death of Shri Lalit Kumar Arya, the business and alongwith ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt had held as under: " There is no express prohibition in terms of Rule 5. Even otherwise it refers to a manufacturer as we see from Rule 5 itself. Admittedly in the case on hand, there is no manufacture in the light of closure of company. Therefore Rule 5 is not available for purpose of rejection as rightly held 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." 8.1 The three questions framed were: a) Whether under the facts and circumstances of the case Tribunal is right in ordering for refund even if there is no provision in Rule 5 of Cenvat Credit Rules 2002, to refund the unutilized credit. b) Whether under the facts and circumstances of the case the Tribunal is right in ordering for refund even if there is no production and there is no clearance of finished goods? c) Whether under the facts and cir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that remained unutilized and as such no refund was therefore payable. It is observed that the contextual situation in the said case before Bombay High Court was rather different as the credit pile up had happened because of change in legal position as the goods on which credit was availed got to be exempted from payment of additional duty of excise. However, that was not a case of closure of the operations on account of the demise of the Proprietor of the firm leading to un-availed and non-utilizable overflow of credit. 12. This Tribunal had an occasion to consider the two contrary viewpoints in the case of CCE, Hyderabad Vs. Apex Drugs & Intermediates Ltd. 2014(314) E.L.T. 729 T., after debating the same, it came to the conclusion that Rule 5 of the Cenvat Credit Rules did not prohibit the grant of such credit refund when for any reason accumulated credit was not utilizable. The assessee in the present case has ceased to be a manufacturer upon surrender of the licence and so the credit available remains unutilizable. Following the judgement of the Hon'ble Karnataka High Court in Slovak India Trading Pvt. Ltd., the Tribunal had dismissed the appeal filed by the department and allo....