TaxTMI 
TaxTMI 
TaxTMI 
2023 (9) TMI 802
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....sent appellant for refund of accumulated CENVAT credit to the tune of Rs. 1,80,26,559/- at the time of closer of their factory in 2017 as utilisation of the same was otherwise impossible consequent upon such closer of its factory. The said application was filed before the Assistant Commissioner of Central Excise, Division-IV, Range-I, New Panvel who after following the required procedural formalities had refused the same on 24.01.2018 in his newly designated capacity of the Assistant Commissioner, CGST & CX, Division-IV, Raigad. Appeal filed before the learned Commissioner of Central Tax (Appeals), Raigad by the present appellant yielded no fruitful result as he was unable to form an opinion concerning admissibility of such refund since the issue of refund of unutilised credit in case of closer of factory had not attained finality then in view of divergent findings of the Bombay High Court that led to the formation of a Larger Bench before whom the issue was pending for a final verdict. Appellant is before us challenging the legality of such order of the Commissioner of Central Tax (Appeals) who followed the latter Division Bench Order on the Hon'ble Bombay High Court passed in....
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....ich Rule 5 cannot be invoked for the purpose of rejection of refund as rightly ruled by CESTAT and therefore refund is fully justified in the case of closer of factory in the light of assessee switching over from MODVAT to CENVAT scheme, which facts also bears resemblance to the appellant, for which he sought intervention of this Tribunal to set aside the order of the Commissioner (Appeals) by allowing refund to the appellant. 3.2 In response to such submissions, learned Authorised Representative for the Respondent-Department Shri Sanjay Hasija, with reference to the judgment of Gauri Plasticulture Pvt. Ltd. Vs. Commissioner of Central Excise reported in [2018 (360) ELT 967 (Bom.)] para 26 and Larger Bench of CESTAT judgment in the case of M/s Steel Strips reported in [2012 (26) STR 70 (Tri.-LB)] para 5.16 argued that SLP agasint Slovak India Trading Co. Pvt. Ltd. was dismissed only on the basis of concession made by the Revenue that decisions relied upon by the Hon'ble Karnataka High Court had not been appealed against. He also submitted that refund results in outflow from treasury, which needs sanction of law for which order for refund cannot be passed in the absence of expr....
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.... a ruling on the judicial precedent that would govern the field and hold good for us so as to be guided by the conclusion arrived at, that would atleast remove the myth from the judicial circle that 'certainty of law is a legal myth'. 5. 'March of law' on this issue is manifest through various judicial pronouncements and to top the list, reference to the judgment of Slovak India Trading Co. Pvt. Ltd. (supra) passed by the Hon'ble Karnataka High Court is worth-mentioning where the following points of law were answered in the affirmative. They are ... "(a) Whether under the facts and circumstances of the case the 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 ease 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 circumstances of the case the Tribunal is right in holding that respondent is entitled for refund even if it goes out of Modvat Scheme or Company is closed?" 5.1 The Division Bench referred to Rule 5 of the Cenva....
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....e by the Learned ASC, this special leave petition is dismissed." 5.3 In the case of Jain Vanguard Polybutylene Ltd. (supra), the same question arose before the Appellate Tribunal as to whether a refund under Rule 5 of the Cenvat Credit Rules, 2004 of the unutilized Cenvat credit availed by the assessee can be allowed on the ground of the closure of the factory. The Tribunal relied upon the decision of the Karnataka High Court in the case of Slovak India Trading Company and noted that the said decision has been confirmed by the Apex Court and therefore, allowed the Appeal of the assessee. This order was carried by the Revenue to the Hon'ble Bombay Court. The Appeal was dismissed in-limine by a Division Bench of Court." (para 5.1 onwards is borrowed from M/s. Gauri Plasticulture Pvt. Ltd. referral judgment) 5.4 Among the observations made by the Division Bench of the Hon'ble Bombay High Court, it is worth-reproducing the most relevant portion noted in para 3 of the said judgment which reads: "3 ... Notwithstanding this concession, it is not possible to say that the S.L.P. was dismissed in view of the concession given by the Additional Solicitor General. No concession wa....
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.... as a binding precedent, in view of the categorical pronouncement of the Hon'ble Supreme Court in the case of Kunhayammed and Others Vs. State of Kerala and Another. In paragraph 44 of the said order the findings of the Hon'ble Apex Court had been crystallised and it is imperative to reproduce sub para V of the said order "(V) If the order refusing leave to appeal is a speaking order, i.e.it gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only ord....
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....ere answered in the negative. Hon'ble Bombay High Court had dealt with both point of law on the issue of admissibility of credit and on judicial precedent including Doctrine of Merger and arrived at the conclusion. 9. Now the issue before us is whether to follow the order as passed the Hon'ble Bombay High Court, which is also the jurisdictional High Court as the correct precedent or to follow the principle as set in Slovak India Trading Co. Pvt. Ltd. case by the Hon'ble Supreme Court, since, there is a district finding in the order of Gauri Plasticulture Pvt. Ltd. (Gauri-2) that order dated 25.01.2007 of the Apex Court is not a declaration of law under Article 141 of the Constitution of India. This Tribunal is not competent to scrutinise either of the judgments but is bound by the rule of precedent as well as guided by its own Larger Bench decisions in this connection. It is pertinent to refer a paragraph of the decision of Hon'ble Supreme Court passed in the case of Assistant Commissioner of Central Excise, West Bengal Vs. Dunlop India and Others [(1985) 1 SCC 260] where they reproduced the famous quote from the case of Cassel and Co. Ltd. Vs. Broome [(1972) A.C. ....
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....ch or not, Hon'ble High Court decisions will prevail over Tribunals decisions unless the same is inflict with a decisions of the Apex Court. In another decision of a five member Bench of this tribunal way back in 1987 [RLT-LB-CEGAT-87], it was also held that in case of conflicting decisions of different High Courts including that of the particular High Court where the assessee or the Jurisdictional Officer is residing, Tribunal while dealing with Central Acts, will have the independence to analyse the issue objectively and arrive at a finding. The relevant para 70 of the said Larger Bench Judgment reads: "We also feel that as a Tribunal, working on all-India basis, we have the freedom to consider judgments holding conflicting views given by different High Courts, and then see for ourselves as to which authority, applied more fully and aptly to the facts of a given case, before us. For, in view of the scheme of the Act, under which we are functioning, as brought into focus in paras 59 and 61 above, we are constrained to repel the argument, that we are circumscribed by the view of a particular High Court where the assessee or a particular Collectorate is, because that would ine....
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.... the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The expression often employed by this Court while disposing of such petitions are - "heard and dismissed", "dismissed", "dismissed as barred by time" and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say "dismissed on merits". Such an order may be passed even ex-parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special lave petition only. In our opinion neither doctrine of merger no Article 141 of the Constitution is attracted to such an order. Grounds entitl....
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.... reason (speaking order), then the implication of that order is that it takes away the jurisdiction any other court on point of fact or law. 12.1 Hon'ble Supreme Court further clarified that implication of that order is a declaration of law within the meaning of Article 141 of the Constitution of India and that it would bind the parties as well as any other Court, Tribunal and Authorities in any proceeding subsequent there to by operation of judicial precedent. 13. The issue before the Larger Bench of Hon'ble High Court of Bombay in Gauri Plasticulture Pvt. Ltd. (Gauri-2) was that whether what has been stated by the learned ASG that 'no appeal was preferred against in all those four judgements of the Tribunal referred by the Hon'ble Karnataka High Court' was a concession as held by a later Bench or was an order with reason, as held by the previous Division Bench in Jain Vanguard Polybutylene Ltd. in which the question of law was kept open by the Hon'ble Supreme Court while dismissing the SLP. It is the observation of Larger Bench in Gauri Plasticulture Pvt. Ltd. (Gauri-2) itself at para 12 that learned ASG appeared on behalf of the UOI fairly conceded to the posit....
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....39;ble Bombay High Court. Be that as it may, as has been held by Kunhayammed and Others (supra) whether the order passed by the Hon'ble Supreme Court merges with itself the order passed by the Court/Tribunal bellow it or not, its decisions with a reason (may be one sentence in view of Gangadhar Pala, Supra) will have binding effect on all Courts, Tribunal etc. in view of the mandate in Article 141 of the Constitution of India. 14. In obedience to the judicial precedent set by the highest Court of the land, we allow the appeal with consequential relief. Hence the order. ORDER 15. The appeal is allowed and the order passed by the Commissioner of Central Tax, Central Excise & Service Tax (Appeals), Raigarh in Order-in-Appeal No. MKK/28/RGD APP/2019-20 dated 26.04.2019 is here by set aside. The appellant is entitled to get cash refund of CENVAT credit of Rs. 1,80,26,559/- available with it at the time of closer of factory with applicable interest as per provision of Section 11BB of the Central Excise Act. The respondentdepartment is directed to pay the same within 3 months of receipt of this order. (Pronounced in court on .2021) (Dr. Suvendu Kumar Pati) Member (Judicial) (....
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....by both the sides, I find that the Tribunal has consistently held that the refund claim is eligible and refund has to be made in cash when the assessee goes out of the Modvat scheme or when the company is closed. In view of these judgments, the impugned order is set aside and the appeal is allowed with consequential relief if any." 18.2 Tribunal as is apparent from the above has not stated the facts of the case that was before it in this case but have relied upon certain decisions referred to by the Counsel for appellant for granting the relief. Thus the decision of learned Single Member, even without referring to the facts of the case in hand and by just granting relief on the basis of certain decisions is sub-silento and could not have been binding precedent. 18.3 The decision in the case of Sri Prakash Textiles (Guj) Ltd [2004 (169) ELT 162 (T)], does not decide the issue but expresses opinion to the effect that grounds raised in the appeal are forceful, and remand the matter back to original authority. In my view, such an opinion expressed by the Single Member without finally deciding the issue cannot be binding precedent. The relevant para of the decision are reproduced bel....
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....cision, the issue was in respect of the amount debited from the MODVAT Credit Account towards payment of Central Excise duty as is evident from the following: i. Eicher Tractors [2002 (147) ELT 457 (T)] "2. The appellants had filed a refund claim dt. 11-4-2000 for Rs. 3,84,129.70 being excess Central Excise duty paid by way of debit in RG 23A Part II during November, 1995 to April, 1996. The jurisdictional Deputy Commissioner rejected the claim on the ground of unjust enrichment. The aggrieved party preferred appeal to the Commissioner (Appeals). The lower appellate authority held that the claim was not hit by unjust enrichment, but rejected the claim on another ground viz. that duty paid through Modvat account could not be refunded in cash. The present appeal is against the order of the Commissioner (Appeals)." ii. Babu Textiles Industries [2003 (158) ELT 215 (T)] "3. The Respondents had claimed refund of Central Excise duty pursuant to Order-in-Appeal No. 1063/99, dated 30-6-1999 by which the appeal filed by them was allowed by the Commissioner (Appeals). The Assistant Commissioner has sanctioned the refund of Rs. 5,395/- but directed the Respondents to take the credit....
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....be refunded to him. The dispute was whether this amount was to be refunded by way of credit in the MODVAT Account or in cash. Since the time when the matter was decided in their favour they for the reasons stated in the respective applications for refund were not in position to utilize the amount sought to be credited in their MODVAT Credit Account. In case the amount was refunded by way of credit in RG 23A part II, the refund would be nullity for the inability of the unit to utilize the same, hence the refund of excess duty paid was ordered to be made by way of cash refund. The facts of the case in hand are not identical to that of this case. As this in the case before us the issue is not in respect of the amount debited from the MODVAT Credit Account maintained by the Appellant, but is in respect of the credit lying unutilized in their MODVAT Account since 1997. 18.6 Be that as it is, I would refer to the decision of the Hon'ble High Court of Karnataka, while upholding the decision in case of Slovak India Trading Co Pvt Ltd. The facts of the case have been clearly recorded by the Hon'ble High Court para 2 of its decision. Hon'ble High Court of Karnataka [2006 (201) ELT 559 (Kar)....
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.... above referred questions of law. 3. Heard the learned Counsel appearing for the appellant and perused the material placed on record. 4. Admitted facts would reveal of a claim of cash refund and admitted facts would reveal of rejection at the hands of the Assistant Commissioner and also the appellate authority. The Tribunal has chosen to allow the claim application on the ground that refund cannot be rejected when the assessee goes out of Modvat scheme or when the Company is closed. The argument is that there is no provision for refund in terms of Rule 5 of Cenvat Credit Rules 2002. Rule 5 reads as under? Rule 5. Refund of CENVAT Credit: When any inputs are used in the final products which are cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, the CENVAT credit in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safe....
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....ll others, at the best, are of merely persuasive efficacy. They are not true rationes decidendi, and are distinguished from them under the name of dicta or obiter dicta, things said by the way. The prerogative of judges is not to make law by formulating and declaring it - this pertains to the legislature - but to make law by applying it. Judicial declaration, unaccompanied by judicial application, is of no authority." 18.8 Stating the same principle Hon'ble Supreme Court has in case of Synthetics And Chemicals Ltd. [1991 SCC (4) 139] "39. But the problem has arisen due to the conclusion in the case of Synthetic and Chemicals. The question was if the State legislature could levy vend fee or excise duty on industrial alcohol. The bench answered the question in the negative as industrial alcohol being unfit for human consumption the State legislation was incompetent to levy any duty of excise either under Entry 51 or Entry 8 of List II of the Seventh Schedule. While doing so the Bench recorded the conclusion extracted earlier. It was not preceded by any discussion. No reason or rationale could be found in the order. This gives rise to an important question if the conclusion is law....
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....hat which escapes in the judgment without any occasion is not ratio decidendi. In Shama Rao v. State of Pondicherry, AIR 1967 SC 1680 it was ob- served, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law." In case of Hyder Consulting (UK) Ltd [(2014) SCC On Line SC 490], relying on the decision of Synthetics and Chemicals, a three member Bench of Hon'ble Apex Court stated as follows: "13. Before I consider the correctness of the aforementioned decisions, it would be necessary to elaborate upon the concept of "per incuriam". The latin expression per incuriam literally means 'through inadvertence'. A decision can be said to be given per incuriam when the Court of record has acted in ignorance of any previous decision of its own, or a ....
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...."Scheme of Modvat 5.1 Scheme of Modvat dealing with input credit was subject matter of analysis in Ichalkaranji Machine Centre Pvt. Ltd. v. Collector of Central Excise, Pune 2004 (174) E.L.T. 417 (S.C.). It has been held that Modvat is basically a duty-collecting procedure, which aims at allowing relief to a manufacturer on the duty element borne by him in respect of the inputs used by him. It was introduced w.e.f. 1-3- 1986. The said scheme was regulated under Rules 57A to 57J of Central Excise Rules, 1944. Rule 57A entitled a manufacturer to take instant credit of the central excise duty paid on the inputs used by him in the manufacture of the finished product, provided that the input and the finished product were excisable commodities and fell under any of the specified chapters in the tariff schedule. Under Rule 57G, every manufacturer was required to file a declaration before the jurisdictional Assistant Collector, declaring his intention to take Modvat credit after paying duty on the inputs. The object behind Rule 57A read with Rule 57G and Rule 57-I was utilization of credit allowed towards payment of duty on any of the final products in relation to manufacture of which s....
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....nd this rule is that an enactment designed to prevent fraud upon the revenue "is more properly a statute against fraud rather than a taxing statute, and for this reason properly subject to liberal construction in the Government favour" - Ref : CRAWFORD, Statutory Construction, p. 508. So in interpreting a provision to plug leakage and prevent tax evasion a construction which would defeat its purpose should be eschewed and a construction which preserves its workability and efficacy should be preferred - Ref : Commissioner of Sales Tax, Delhi v. Sri Krushna Engg. Co., (2005) 2 SCC 695, p. 703. Non-Filing of Appeal by Revenue is not a Bar for Scrutiny in another case 5.5 Doctrine of merger was pressed into service by the ld. Sr. Counsel Sri Anand appearing on behalf of the Assessee submitting that due to dismissal of Revenue's Civil Appeals, present reference was unwarranted. For appreciation of Doctrine of merger, it would be beneficial to reproduce Paras 40 - 44 of the judgment of the Hon'ble Supreme Court laying down the law in the case of Kunhayammed v. State of Kerala - 2001 (129) E.L.T. 11 (S.C.) as under : "40. A petition seeking grant of special leave to appeal may be....
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....reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate Jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger. 41. Once a special leave petition has been granted, the doors for the exercise of appellate Jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appea....
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....ferred by Article 136 of the Constitution is divisible into two stages. First stage Is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. (iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a nonspeaking order or a speaking order or a speaking one. In either case it does not a....
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.... an appeal in another case where there is just cause for doing so or it is in public interest to do so or for a pronouncement by the higher Court when divergent views are expressed by the Tribunals or the High Courts as has been held in the case of C.K. Gangadharan v. CIT, Cochin, reported in 2008 (228) E.L.T. 497 (S.C.) = 2009 (16) S.T.R. 659 (S.C.). In Gauri Piasticulture (P) Ltd. (supra) except the claim being permitted under equitable considerations the controversy remained unanswered on the point of law while grant of refund of the nature claimed was not mandate of the Act or the 1994 Rules. The issue, therefore is rightly called for consideration in the present reference on the point of law. Policy of Refund of Input Credit is Regulated by Statutory Provisions 5.7 A distinction between provisions of statute which are of substantive character and are built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in their nature, on the other, must be kept clearly distinguished. An eligibility criteria to get refund calls for a strict construction, although construction of a condition thereof may be given a libera....
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....confusingly or incorrectly written that an earnest effort at compliance should be accepted. Substance and Essence of Statute are Paramount Considerations 5.9 The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance of those factors which are considered as essential. In the cases of refund substantial compliance to the law granting refund is sine qua non. Courts have to decide what the law is but not what it should be 5.10 In a plethora of cases, it has been stated by various judicial pronouncements that where, the language is clear, the ....
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....ee to pay duty out of PLA, the refund of the same would be in cash to the extent of payment of duty in cash during that period. It was further held that if no cash payment towards duty were made through PLA and credit would have remained unutilized in the account books, such credit cannot be allowed by way of cash. 5.13 While arriving at the aforesaid conclusion, the Larger Bench in Para 11 of the order recorded the fact that in the case before them debit entry in credit account was made by the Appellants on 23-11- 2000 while central excise registration was surrendered by the assessee in September 2000 i.e., before making the debit entry in RG-23 account. Further observation of the Bench was even if the amounts towards duty would not have been debited by them in the said account, the same would have been remained unutilized. As such, on the success of their appeal before the Commissioner (Appeals), they cannot claim the refund of the same in cash, inasmuch as on account of such debit entry, they have not discharged any duty out of PLA. If the said refund is granted to the appellants by way of cash, the same would amount to enrich him unjustifiably. It is well settled principles ....
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.... an assessee is not able to use the credit on account of any reasons, whatsoever (which may be closure of his factory or final products being exempted, etc.) the refund becomes admissible in cash or by way of credit entry in PLA to the extent duty paid in cash or out of PLA during the relevant period." 5.15 The decision made in Gauri Plasticulture (P) Ltd. was called for on the question before the Larger Bench as framed in Para 1 thereof. At the cost of repetition it may be stated that the question before Larger Bench in that case was "whether duty debited in RG-23 A Part II can be refunded in cash, when the refund becomes otherwise due" [Emphasis supplied]. But the conclusion in that case as per Para 10 was that if denial of credit has compelled an assessee to pay duty out of PLA, the refund of the same would be admissible in cash to the extent of payment of duty in cash during that period. However, if no cash payments towards duty were made through PLA and the credit would have remained unutilized in the account books, such credit cannot be allowed by way of cash. Such decision does not appear to have flown from the question appearing in Para 1 of the Larger Bench decision as ....
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....cinctly in the referring order. A very brief reference is required to be made thereto in order to appreciate the challenge to the order passed by the said Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai (for short "the CESTAT"). The appellant in Central Excise Appeal No. 13 of 2007 was engaged in manufacturing of reisin PVC pipes and fittings. There was a dispute regarding availability of small scale industries exemption ("SSI" for short) under the Notification dated 28th February, 1993. A show cause notice was issued for recovery of dues on clearance of the pipes during the period of denial of this exemption. The order-in-original was passed confirming the demand and a penalty was also imposed. The exemption was denied on the ground that the appellant was manufacturing pipes bearing a mark "Jain Pipe" and that was a brand name. An appeal was preferred to the Commissioner (Appeals) and he allowed the appeal holding that this cannot be considered as a brand name. In view of the order passed in appeal, an application for refund was made seeking refund, but a show cause notice was issued proposing to reject the refund claim of Rs. 8,41,043/- out of the t....
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....on reads as under:- "11B. Claim for refund of duty and interest, if any, paid on such duty- ........" 8. A bare perusal of this provision and particularly proviso to subsection (2) would denote that instead of crediting the amount of refund to the fund, it can be paid to the applicant seeking refund, if such amount is relatable, inter alia, to refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made or any notification issued under this Act. The word "refund" is defined in the Explanation and it says that it includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India. 9. The argument of Mr.M.H.Patil learned advocate appearing on behalf of the appellant in Central Excise Appeal No. 13 of 2007 and respondents in Central Excise Appeal Nos. 257 of 2007 and 28 of 2008 is that if one peruses section 11B carefully, then, cash refund of accumulated credit lying un-utilised on account of closure of factory/ stopping of activity/ inability to use, is admissible. He invites our attention to Rule 5 of the Cenvat Credit Rules, 2004 to urge t....
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....n hand, there is no manufacture or closure in the light of closure of the company, then, Rule 5 is not available for the purpose of rejection of the claim. The claims have been allowed on the basis of closure of the factory and in the light of the assessee going out of Modvat scheme. With this conclusion, the appeals of the Revenue were dismissed. 12. Aggrieved and dissatisfied with this judgment and order of the High Court of Karnataka, the Revenue carried the matter to the Hon'ble Supreme Court and the Hon'ble Supreme Court came to the conclusion that the tribunal at Bengaluru relied upon the order of coordinate Benches of the tribunal and against which, no appeals were preferred by the Revenue. The learned Additional Solicitor General appeared on behalf of the Union of India and fairly conceded to the position that those decisions of the tribunal have not been appealed against. In view of this concession of the learned Additional Solicitor General, the Revenue's appeals were dismissed. 13. Mr.Patil would submit that in the case of Jain Vanguard Polybutylene Ltd. (supra), the tribunal at Mumbai followed the view taken in the case of Slovak India Trading Company Pvt Ltd. (su....
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....judgments of the Division Benches of atleast two High Courts. It is argued that we must uphold the consistent views of the tribunal. 15. Mr.Patil also submits that the lack of consistency in the approach of the Revenue would disable it from questioning the correctness of the view taken by the tribunal. Mr.Patil has relied upon the Modvat Scheme and invited our attention to Rule 57H and 57AG of the Central Excise Rules, 1944, Rule 9 of the Cenvat Credit Rules, 2002 and Rule 11 of the Cenvat Credit Rules, 2004 as prevailing in 2017- 18 to urge that the scheme has remained the same throughout. There is absolutely no departure from it at all. 16. Our attention has also been invited to the view taken by the North Zonal Bench of the CESTAT in the case of Purvi Fabrics & Texturise (P) Ltd. vs. Commissioner of Central Excise, Jaipur III to the effect that there is no legal provision existing for refund either by cash or cheque. The only exception carved out is that the refund in cash is granted as an incentive measure to the exporter. The provisions and particularly section 11B of the Central Excise Act provides for payment of amount of refund to the applicant only in situations spec....
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....hing which they themselves do not provide. In these circumstances, according to Mr.Jetly, we must proceed to answer the questions referred accordingly. He submits that this court should hold that a refund of unutilised amount of Cenvat Credit on account of closure of manufacturing activities or inability to utilise input credit is not permitted. The order passed by the Hon'ble Supreme Court in Slovak India (supra) cannot be a declaration of law. It appears that the Revenue has brought to the notice of the Division Bench, the view of the larger Bench of the CESTAT in the case of Steel Strips Ltd. vs. Commissioner of Central Excise, Ludhiana 2011 (269) ELT 257 (Tri.). The Revenue relied upon this judgment while urging that the claim of refund is not a matter of right unless vested by law. The plea of injustice or hardship cannot be raised to claim refund in the absence of statutory mandate. No equity or good conscience influence fiscal courts without the same being embedded to statutory provisions. Thus, strict compliance with law in matters of refund is a pre-requisite. This larger Bench judgment in the case of Steel Strips (supra), according to the Revenue, expressly refers to all ....
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....wn the provision by way of substituting the word "or" by an "and" so as to give relief to the assessee is found to be erroneous. In that regard the submission of the counsel for the appellant is well founded that once the said credit is taken the beneficiary is at liberty to utilise the same, immediately thereafter, subject to the Credit Rules." 22. In the case at hand, we are considering a claim of refund of duty. Section 11B(1) clearly says that a person claiming refund has to make an application for refund of such duty before the expiry of the period prescribed and in such form and manner. The application has to be accompanied by such documentary or other evidence as the applicant may furnish to establish that the amount of duty of excise, in relation to which such refund is claimed, was collected from or paid by him and incidence of such duty had not been passed by him to any other person. The later provision enabling the claiming of refund is now worded differently. We have reproduced it and now it is only when the proviso is attracted that the amount of refund can be paid over to the applicant or else it has to be credited to the fund. Even earlier, the amount used to be c....
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....rvice in respect of which payment is received in India in convertible foreign exchange and the same is not repatriated from, or sent outside, India. Provided that the CENVAT credit or inputs shall not be denied to job worker referred to in rule 12AA of the Central Excise Rules, 2002, on the ground that the said inputs are used in the manufacture of goods cleared without payment of duty under the provisions of that rule." 23. Thus, a perusal of this rule indicates that where any input or input service is used in the final product, which is cleared for export etc. or used in the intermediate product cleared for export or used for providing output service which is exported, then, the Cenvat Credit in respect of the input or input service so used shall be allowed to be utilised by the manufacturer or provider of output service towards payment of duty of excise on any final product cleared for home consumption or for export on payment of duty or service tax on output service. Whether for any reason, such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitation as may be specified by the Central Govern....
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....ld mean that such inputs are also automatically excluded from sub-rule (1) whereas according to the Department sub-rule (1) is a general rule which provides, that except for the circumstances mentioned in sub-rule (2), CENVAT Credit shall not be allowed on such quantity of inputs used in the manufacture of exempted goods and even though fuel inputs are excluded from subrule (2), such inputs would still fall under sub-rule (1). 16. In our view, sub-rule (1) is plenary. It restates a principle, namely, the CENVAT credit for duty paid on inputs used in the manufacture of exempted final products is not allowable. This principle is inbuilt in the very structure of the CENVAT scheme. Subrule (1), therefore, merely highlights that principles. Sub-rule (1) covers all inputs, including fuel, whereas sub-rule (2) refers to nonfuel inputs. Sub-rule (2) covers a situation where common cenvatted inputs are used in or in relation to manufacture of dutiable final product and exempted final product but the fuel input is excluded from that sub-rule. However, exclusion of fuel input vis-a-vis nonfuel input would still fall in sub-rule (1). As stated above, sub-rule (1) is plenary, hence, it canno....
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....e purpose behind the above expression is to widen the ambit of the definition so as to attract all goods, which do not enter directly or indirectly into the finished product, but are used in any activity concerned with or pertaining to the manufacture of the finished product. 34. In the past, there was a controversy as to what is the meaning of the word "input", conceptually. It was argued by the Department in a number of cases that if the identity of the input is not contained in the final product then such an item would not qualify as input. In order to get over this controversy in the above definition of "input", the legislature has clarified that even if an item is not contained in the final product still it would be classifiable as an "input" under the above definition. In other words, it has been clarified by the definition of "input" that the following considerations will not be relevant : (a) use of input in the manufacturing process be it direct or indirect; (b) even if the input is not contained in the final product, it would still be covered by the definition. These considerations have been made irrelevant by the use of the expression "goods used in or in rel....
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.... shall be required to pay an amount equivalent to the CENVAT credit, if any, taken by him in respect of inputs received for use in the manufacture of the said final product and is lying in stock or in process or is contained in the final product lying in stock, if,- (i) he opts for exemption from whole of the duty of excise leviable on the said final product manufactured or produced by him under a notification issued under section 5A of the Act; or (ii) the said final product has been exempted absolutely, under section 5A of the Act, and after deducting the said amount from the balance of CENVAT credit, 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 other final product whether cleared for home consumption or for export, or for payment of service tax on any output service, whether provided in India or exported. (4) A provider of output service shall be required to pay an amount equivalent to the CENVAT credit, if any, taken by him in respect of inputs received for providing the said service and is lying in stock or is contained in the taxable service pending to be provided, whe....
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....en anything in Rule 5 permitting refund of un-utilised credit. We are not dealing with a situation or case of a manufacturer or producer of final products seeks to claim Cenvat Credit of the duty paid on inputs lying in stock or in process when the manufactured or produced goods cease to be exempted goods or any goods become excisable (see Rule 3(2) of the Cenvat Credit Rules, 2004). Thus, refund of Cenvat Credit is permissible where any input is used for the final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export. In the scheme of the rules, therefore, what is sought by the assessee is not permissible. Thus, the attempt by the assessee to claim refund of un-utilised Cenvat Credit cannot be upheld. Merely because the inputs were lying un-utilised or were capable of being utilised, but the manufacturing activities came to a stand still on account of closure of the factory would not enable the assessee to claim refund of Cenvat Credit. That such credit can be availed of provided the inputs are used and not otherwise is clear from the scheme of the rules to which we have made a detailed ....
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....s, overlooked. So long as the assessee is a manufacturer even if his factory is closed, the input credit was available, is thus the view.. Hence, the refund was held to be permissible. 33. When the matter was carried to the Hon'ble Supreme Court by the Revenue, the Hon'ble Supreme Court noted the concession of the learned Additional Solicitor General. That concession is that the views of the tribunals to the aforesaid effect have not been appealed against by the Revenue/Union of India. Pertinently, there is no concession by the Additional Solicitor General of India on the point of law. Hence, going by this concession on fact, the Special Leave Petition of the Revenue was dismissed. This, by no stretch of imagination, is a confirmation or approval of the view taken by the South Zonal Bench of the Tribunal at Bengaluru or the High Court of Karnataka. 34. Pertinently, when the matter was brought before this court in the case of Jain Venguard (supra), this court, relying upon the judgment in the case of Slovak India (supra) and the order in the Special Leave Petition, dismissed the Revenue's appeal. The aggrieved Revenue, carried the matter to the Hon'ble Supreme Court and the order....
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....ervice the judgment of the Hon'ble Supreme Court in the case of Birla Corporation Ltd. vs. Commissioner of Central Excise 2005 (186) ELT 266 (SC) = 2005-TIOL-99-SC-CX. There, the issue was entirely different. The issue was whether the duty paid on spares of rope way 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 rope way 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 rope way as a means of transportation. 38. An identical issue came up for consideration in the case of J.K. Udaipur Udyog Limited vs. Commissioner of Central Excise 2001 (130) ELT 996. In that case, the tribunal followed the principles laid down in its prior decision and held that the Modvat Credit was admissible. A civil appeal was preferred to the Hon'ble Supreme Court, but that was dismissed as not pressed. That is because the judgment relied upon by the tribunal....
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....10 of the Cenvat Credit Rules, 2004. This rule only provides for transfer of unutilized Cenvat credit but not encashment. The fact that they have subsequently come under GST regime makes no difference and the appellant cannot claim the refund under a legal provision which does not exist. Rule 5 of the Cenvat Credit Rules, 2004 provides for refund of Cenvat credit in case of export of goods or export of services if the assessee is not able to utilize the corresponding Cenvat credit. Earlier, prior to 1-4- 2012, this Rule also provided the refund of the Cenvat credit if the Cenvat credit could not be utilized for any other reason. In that context, the Hon'ble High Court of Karnataka in the case of Slovak India Trading Company Pvt. Ltd. (supra) has held that refund of the Cenvat credit is admissible under Rule 5 of the Cenvat Credit Rules, 2004 if the factory is closed. Subsequently, this rule has been amended and right now there is no scope of refund of the Cenvat credit which has not been utilized at the time of closer of the factory. At any rate, the appellant's application was not under Rule 5 of the Cenvat Credit Rules, 2004." 22. A three member bench of Hon'ble Supreme Court h....
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....nd, and by construction make up deficiencies which are left there. (See State of Gujarat v. Dilipbhai Nathjibhai Patel - 1998 (3) SCC 234). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. [See Stock v. Frank Jones (Tipton) Ltd. - 1978 (1) ALL ER 948.] Rules of interpretation do not permit the courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. The courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn, L.C. in Vickers Sons") 15. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid", Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage - 218 FR 547) The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama - (1990) 1 SCC 277 (SCC p. 284, para 16). 16. In D.R. Venkatachalam v. Dy. Transport Commr. (1977) 2 SCC 273, it was observed that the court....
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....ords further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But", on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom". (See Fenton v. Hampton (1858) 11 MOO PC 347). 20. A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod enim semel aut bis existit praetereunt legislatores, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus", observed Buller, J. in Jones v. Smart - 1785 (1) TR 44:99 ER 963 (ER p. 967) "can in no case be supplied by a court of law, for that would be to make laws". The principles were examined in detail in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat [2004 (6) SCC 672]. 21.....
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....raises the difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative Legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to communic....
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....t might become victims of discretionary decision-making. Insofar as taxation statutes are concerned, Article 265 of the Constitution [265. Taxes not to be imposed save by authority of law - No tax shall be levied or collected except by authority of law.] prohibits the State from extracting tax from the citizens without authority of law. It is axiomatic that taxation statute has to be interpreted strictly because State cannot at their whims and fancies burden the citizens without authority of law. In other words, when competent Legislature mandates taxing certain persons/certain objects in certain circumstances, it cannot be expanded/interpreted to include those, which were not intended by the Legislature. 22. At the outset, we must clarify the position of 'plain meaning rule or clear and unambiguous rule' with respect of tax law. 'The plain meaning rule' suggests that when the language in the statute is plain and unambiguous, the Court has to read and understand the plain language as such, and there is no scope for any interpretation. This salutary maxim flows from the phrase "cum inverbis nulla ambiguitas est, non debet admitti voluntatis quaestio". Following such maxim, the Co....
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....s. Pinky Anand, Learned Additional Solicitor General, the principle of literal interpretation and the principle of strict interpretation are sometimes used interchangeably. This principle, however, may not be sustainable in all contexts and situations. There is certainly scope to sustain an argument that all cases of literal interpretation would involve strict rule of interpretation, but strict rule may not necessarily involve the former, especially in the area of taxation. The decision of this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court Chandigarh and Ors., (1990) 3 SCC 682, made the said distinction, and explained the literal rule "The literal rules of construction require the wording of the Act to be construed according to its literal and grammatical meaning whatever the result may be. Unless otherwise provided, the same word must normally be construed throughout the Act in the same sense, and in the case of old statutes regard must be had to its contemporary meaning if there has been no change with the passage of time." That strict interpretation does not encompass strict - literalism into its fold. It m....
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....tle the issues and give finality to the divergent opinion emerged, the Registry is directed to place the matter before the Hon'ble President. The following points are required to be settled to give a finality to the issue:- i. Whether the decision of the Hon'ble High Court of Karnataka in case of Slovak India Trading Co Pvt, and affirmed by the Hon'ble Supreme Court, is applicable to the facts of the case in hand as held by Member (Judicial); or The decision of the Hon'ble Karnataka High Court is clearly distinguishable and not applicable to the facts of the case as held by Member (Technical) ii. Whether the order passed by the Hon'ble Supreme Court is to be accepted as binding precedent in view of Kunhayammed and others judgment [2001 (129) ELT 11 (S.C.)] read with Gangadhar Pal Vs RDC [2012 (25) STR 273 (SC)] in view of operation of Article 141 of the Constitution of India irrespective of the merger or no merger of the judgment of Hon'ble High Court with the judgment of the Hon'ble Supreme Court; or CESTAT is bound to follow the decision of the larger Bench of CESTAT ( in the case of Steel Strips) and larger Bench of the Hon'ble Bombay High Court (Jurisdictional High Court) ....
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....ed in court on 28.09.2021) (Sanjiv Srivastava) Member (Technical) (Dr. Suvendu Kumar Pati) Member (Judicial) ORDER ON DIFFERENCE OF OPINION INTERIM ORDER NO. 31/2023 PER: S.K. MOHANTY 25. The back ground facts, leading to the difference of opinion by the learned Members in the Division Bench, in a nut shell, are that the appellants herein M/s ATV Projects India Ltd., during the material period, was a manufacturer of excisable goods and subsequently had closed down the factory in the year 1998, but continued to have the registration certificate effective till June, 2017. Thereafter, they have surrendered the certificate to the department and on 26.10.2017, filed the application before the jurisdictional Central Excise authorities, claiming refund of the accumulated Cenvat credit amounting to Rs. 1,80,26,559/-, owing to the reason of closure of the factory. The said refund application was filed under Rule 5 of the Cenvat Credit Rules, 2004. The Assistant Commissioner of Central Excise vide Order dated 25.01.2018 had rejected the refund application filed by the appellant. Against the said original order, the appellant had preferred appeal before the learned Commissioner (App....
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.... Supreme Court is to be accepted as binding precedent in view of Kunhayammed and others judgment [2001 (129) ELT 11 (S.C.)] read with Gangadhar Pal Vs. RDC [2012 (25) STR 273 (SC)] in view of operation of Article 141 of the Constitution of India irrespective of the merger or no merger of the judgment of Hon'ble High Court with the judgment of the Hon'ble Supreme Court; or CESTAT is bound to follow the decision of the larger Bench of CESTAT (in the case of Steel Strips) and larger Bench of the Hon'ble Bombay High Court (Jurisdictional High Court) in the case of Gauri Plastic Culture - [2019 (6) TMI 820 (Bombay- HC)] which has dealt with the findings of Kunhayammed. In para 40 of the judgement in RE: Kunhayammed, the Hon'ble Supreme Court had found that where the SLP is dismissed at the threshold, without having been allowed to enter the appellate jurisdiction, the doctrine of merger would not apply, however, it would still remain a declaration of law U/Art. 141 and therefore, will take away the jurisdiction of any other Court, Tribunal or authority to express any opinion in conflict with or in departure from the view taken by the Hon'ble Supreme Court, because permitting to d....
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....tma Steel Private Limited and others Vs. Collector Central Excise, Chandigarh and others [RLT (LB) CEGAT-87] on the application of binding precedent is to be followed by the Tribunal to arrive at a conclusion as held by the Member (Judicial); or Observation of the larger Bench of the Hon'ble Bombay High Court upon nonapplication of Article 141 in the context of the findings of the Hon'ble Supreme Court is to be followed by this Tribunal, as held by the learned Member (Technical) though ratio of the judgment in Gangadhar Pal had not been brought to the knowledge of the Hon'ble Bombay High court. If there is conflict between law laid down by the Hon'ble High Court and ratio of the decision of the Tribunal, whether it is a Larger Bench or not, Hon'ble High Court decisions will prevail over Tribunal's decisions, unless the same is inflict with a decision of the Apex Court. Similarly, in case of conflicting decisions of different High Courts including that of the particular High Court where the assessee or the Jurisdictional Officer is residing, Tribunal while dealing with Central Acts, will have the independence to analyse the issue objectively and arrive at a finding; Irr....
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....d by both sides. 27. On careful reading of the questions framed as above, I find that the opinions of the learned Members in the Bench are explicitly divergent only on the effect of the dismissal of SLP of Revenue against the decision of the Hon'ble Karnataka High Court in the case of Slovak India Trading Co. Pvt. Ltd (supra). The issue of limitation raised by the learned Member (Technical), though has not been discussed separately by the learned Member (Judicial); but vide the Interim Order dated 28.09.2021, since has directed for grant of refund along with interest, a divergent stand has been taken impliedly. The other issues, though stated explicitly as points of reference, are not required to be addressed by me inasmuch as no discussions have been made by either of the Members on those issues in the body of the Interim Order. I therefore, confine myself only on two issues (referred supra) for recording my opinion. 28.1 The Tribunal in the case of Slovak India Trading Co. Pvt. Ltd. Vs. Commissioner of C.Ex., Bangalore - 2005 - TIOL - 1698 - CESTAT - BANG., has held that refund claim is eligible and refund has to be made in cash, when the assessee goes out of Modvat Scheme or w....
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....Union of India fairly concedes that those decisions of the Tribunal, which were relied upon by the Tribunal, have not been appealed against. In view of the concession made by the learned ASG, this special leave petition is dismissed." 28.2 On reading of the judgement of Hon'ble Supreme Court, referred supra, it is amply made clear that the issue regarding cash refund of accumulated Modavt/Cenvat credit, in the case of closure of factory was appreciated by the Hon'ble Court and upon consideration of various decisions rendered by the Tribunal, in allowing such refunds, the concession made by the learned ASG to such extent was accepted and accordingly, the SLP was dismissed. Further, it is an admitted fact on record that the decisions of the Tribunal referred to by the Hon'ble Supreme Court in the judgement dated 25.01.2007 have not been appealed against by the Revenue, meaning thereby that the principles or the issue dealt with and decided by the Tribunal were accepted by the Revenue. On a close reading of the judgment dated 25.01.2007, it transpires that the learned ASG had made the concession or consent, owing to the reason that in absence of non-filing of appeal(s) against the ....
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....ven if the SLP is dismissed with reasons, however meagre (one sentence), there is merger of orders. It has further been held that once the SLP is dismissed, giving reasons by the Hon'ble Supreme Court, however meagre, it becomes a declaration of law. Thereafter, the decision which is merged with the decision of Hon'ble Apex Court, is non-existent, and thus, cannot be reviewed. The relevant paragraphs in the said judgement are extracted herein below: "8. When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court. Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist. 9. The situa....
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.... assigning any reason, then in that case, it cannot be inferred that the judgment of High Court has merged with the Judgment of the Hon'ble Apex Court. At the same time, it was also held that when a SLP is dismissed with reasons, even if by recording only one sentence, then the judgment of the High Court can be said to be merged with the judgment of Hon'ble Supreme Court. I find that the judgement of Hon'ble Supreme Court in the case of Gangadhara Palo (supra), was not placed by the counsel from either side before the Hon'ble Bombay High Court, while deciding the appeal in the case of Gauri Plasticulture Pvt. Ltd. (supra); and therefore, I am of the view that the ratio of the judgment of Hon'ble Apex Court (supra) were not considered by the Hon'ble High Court, for a decision on the subject issue in the case of Gauri Plasticulture Pvt. Ltd.(supra). Therefore, it cannot conclusively be said that the decision of the Hon'ble Karnataka High Court in the case of Slovak India Trading Co. Pvt. Ltd. (supra), lacks value as a precedent and the contextual facts and circumstances must be examined. 28.6 Since the principle of the doctrine of merger has been adequately dealt with by the Hon'ble....
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....ount till closure of the factory. Since, the appellant could not continue to carry on its business activities, for whatever reason, had ultimately surrendered the registration certificate. Owing to the reason of non-utilisation of cenvat credit for the intended purpose, the appellant had claimed the un-utilised cenvat credit lying in its books of accounts. The only active provision for grant of refund of cenvat credit is available in Rule 5 ibid. Though, the said rule has considered for grant of refund in case of exportation of goods or services, but in terms of judgement of Hon'ble Karnataka High Court in the case of Slovak India Trading Co. Pvt. Ltd. (supra), the accumulated cenvat credit is available for refund in absence of any express prohibition being contained in Rule 5 ibid. The modality for grant of refund of the excise duty is contained in Section 11B of the Central Excise Act, 1944. The relevant date of computation of the expiry period has been explained in Explanation-(B) appended to Section 11B ibid. Various circumstances for consideration of relevant date in the course of ongoing activities undertaken by a business establishment, have been elucidated therein. Since, c....