TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 243
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....e assets to another company namely M/s. Mesmer Pharmaceuticals through a Memorandum of Understanding dated 10.11.2014. 2. The appellant company then filed a refund claim for refund of Rs.2,17,45,625 vide their letter dated 18/7/2016 being the book balance outstanding in their CENVAT account. 3. Thus the appellant sought for refund of accumulated CENVAT credit lying in their books by way of cash from the department. Show cause Notice dated 24/8/2016 was issued to the appellant proposing to deny the refund claim. After due process of law, the Original authority rejected the refund claim. Against this order the appellant preferred an appeal before the commissioner appeals who vide order impugned herein upheld the rejection of refund claim. H....
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.... was referred to by the Honourable High Court. It was observed that the Division Bench of the Honourable High Court of Karnataka in the said case took a view that there is no express prohibition in Rule 5 to refund the unutilised CENVAT credit. The revenue filed an appeal against such decision before the Honourable Apex court, and on the basis of the representation made by ASG who appeared on behalf of the Union of India that in similar decisions passed by the Tribunal, the revenue had not filed any appeal, the Honourable Apex Court had dismissed the appeal filed by the revenue. Thus there was no declaration of law under Article 141 of the Constitution of India in the said case. After adverting to various decisions on the point the Hon'ble ....
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....ompany. Therefore, Rule 5 is not available for the purpose of rejection as rightly rules 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." 32. Thus, the High Court of Karnataka took the view that there is no express prohibition in terms of Rule 5 and that rule refers to a manufacturer. Thus, even if there is no manufacture in the light of the closure of the factory, the asse....
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....eason to interfere with the impugned order in exercise of our discretion under Article 136 of the Constitution. The Special Leave Petition is, accordingly, dismissed leaving the question of law open." 35. The Special Leave Petition was dismissed, but the question of law was expressly kept open. It is in these circumstances that we are not in agreement with Mr. Patil that the issue or the controversy before us stands concluded against the Revenue. The question of law was still open to be raised and equally examined by us. There is no question of judicial discipline in such matters. The counsel relied upon this principle of judicial discipline by inviting our attention to the judgment of the Hon'ble Rajasthan High Court in the case of Welcu....
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....ed. He pressed into service the judgment of the Hon'ble Supreme Court in the case of Birla Corporation Ltd. v. Commissioner of Central Excise - 2005 (186) E.L.T. 266 (S.C.). There, the issue was entirely different. The issue was whether the duty paid on spares of ropeway used for the purpose of transporting the crushed limestone from the mines located 4.2 kilometer away to the factory is entitled to Modvat credit. That was disallowed on the ground that ropeway transports raw material from the mines to the factory premises and is not a material handling equipment within the factory premises. It was not disputed that the crushed limestone is brought from the mines to the factory premises where it is deposited utilising the ropeway as a means ....