2024 (10) TMI 1398

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....note that no appeal lies against the order dated 6 November 2023, by which the Appellant's application for rectification came to be rejected. 3. Be that as it may, the learned counsel for the Appellant has proposed several questions listed on pages Nos.117 to 119 of the paper book and has urged that these are substantial questions of law which arise in this appeal. 4. The learned counsel for the Appellant submitted that the facts in Gauri Plasticulture P. Ltd. Vs. Commissioner of C. Ex., Indore 2018 (360) E.L.T. 967 (Bom.), differed from the facts in the present case. He submitted that in Gauri Plasticulture P. Ltd. (supra), the Full Bench of this Court was concerned with a refund of the unutilised amount of CESTAT credit on account of th....

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....e (supra). He submitted that impliedly, even Lav Kush Textile (supra), therefore, stands overruled by the Full Bench of this Court in the case of Gauri Plasticulture (supra). 7. Mr. Mishra, therefore, submitted that this appeal raises no substantial questions of law and ought to be dismissed. 8. The rival contentions now fall for our determination. 9. The Tribunal, in this case, has considered the factual position as now portraited by the learned counsel for the Appellant and, by following the decision of the Full Bench of this Court in the case of Gauri Plasticulture (supra), had held that no refund either in cash or in kind would be allowed to the Appellant. 10. The Full Bench, in Gauri Plasticulture (supra) framed the following quest....

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...., 2002, as they existed prior to the 10th September, 2004 or by a provider of output service under the Service Tax Credit Rules, 2002 as they existed prior to 10th September, 2004 and remaining un-utilised on that day shall be allowed as Cenvat Credit to such manufacturer or provider of output service under these rules, and be allowed to be utilised in accordance with these rules. This is how the transitional provision enables carrying forward of the un-utilised Cenvat Credit. That is a distinct contingency altogether. That transitional provision does not enable us to hold that the amount of un-utilised Cenvat Credit can be refunded in cash. 29. We do not think that by taking assistance of this provision, we will be able to hold as conte....

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.... 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 reference in the foregoing paragraphs." 13. The learned counsel for the Appellant relied on Lav Kush Te....