2006 (8) TMI 225

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....cash, when the refund becomes otherwise due, has referred the said question to the Larger Bench. 2. We have heard Shri A.V. Naik, ld. Advocate appearing for the appellants and Shri Ajay Saxena, ld. SDR appearing for the revenue. 3. We have taken note of various decisions of Tribunal in the case of DCM Data Products v. CCE, New Delhi [1994 (71) E.L.T. 631 (Tri.)] the issue involved was as regards the allowing of proforma credit, which the revenue delayed and the subsequent transfer of the same to RG.-23A Part-II. In the meanwhile duties were paid by them through PLA. On subsequent success of their appeal, the Tribunal in para 6 of their judgement observed as under:- "The appellants seek recasting/readjustment of RG.-23 and PLA....

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....0 (47) E.L.T. 466 (Tri.)] holding that such amount can be claimed by way of cash refund also. Appeal against the above order of the Tribunal was dismissed by the Hon'ble Supreme Court as reported in 1996 (84) E.L.T. A106 (S.C.). 5. Similarly in the case of Sandoz (India) Ltd. v. CCE - 1990 (50) E.L.T. 403 (Tri.), the Tribunal observed that refund arising as a consequence of allowing of appeal but not practicable to avail on account of rescinding of set off notification in the meanwhile, the credit is required to be paid in cash or by cheque. We also take note of another decision of the tribunal in the case of CCE, Bhubaneswar v. Orient Paper Mills - 1994 (73) E.L.T. 648 (Tri.) observing that the bar of unjust enrichment is not applic....

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....given in cash inasmuch as the assessee stopped its manufacturing activities. However, such refund by cash was allowed to the extent of duty paid in PLA during that particular period. 7. As against above lots of decisions in favour of the assessee there is contra views as reflected in the following decisions :- (i) TI Cycles of India v. CCE, Madras - 1997 (93) E.L.T. 126 (Tri.) - Refund of duty amount paid by debit to RG account is to be credited in the same account and not paid in cash or by cheque. (ii) CCE, Chennai v. Rajashree Cements - 2001 (132) E.L.T. 724 (Tri. - Chennai) (iii) Purvi Fabrics & Texturise (P) Ltd. v. CCE, Jaipur-II - 2004 (172) E.L.T. 321 (Tri. - Del.) 8. Detailed reading of the above ju....

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.... for future clearances, it should be normally be credited back in the same account from where it was debited i.e. RG-23A Part II account. However, if 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. 9. On the same basic principles of equity, justice and good conscience, if such refund in cash makes the assessee enrich because during the period when the dispute was pending, they had not paid any duty in cash and as such, the debit entry in Modvat account would have made no difference, as th....