2009 (6) TMI 790 - AT - Central Excise

Refund - Cenvat/Modvat - whether a claim for refund of unutilized CENVAT Credit availed by the assessee under Rule 5 of the Cenvat Credit Rules, 2004 is liable to be allowed on the ground of closure of their factory? - Held that - refund allowed.

Summary

Issues:
1. Claim for refund of unutilized CENVAT Credit due to factory closure.

Analysis:
The judgment by the Appellate Tribunal CESTAT, Mumbai dealt with the issue of whether a claim for refund of unutilized CENVAT Credit availed by the assessee under Rule 5 of the Cenvat Credit Rules, 2004 is permissible upon the closure of their factory. The Tribunal referenced a similar case before the Hon'ble High Court of Karnataka where it was held that Rule 5 does not explicitly prohibit such a claim. The High Court ruled in favor of the assessee, emphasizing that since there was no manufacturing activity due to the factory closure, Rule 5 could not be invoked for rejection of the claim. The Tribunal justified the refund based on the closure of the factory and the assessee's exit from the Modvat Scheme. Consequently, the Tribunal allowed the appeal in favor of the assessee, following the High Court's decision.

The Union of India challenged the High Court's judgment by filing a Special Leave Petition in the Supreme Court. However, the Supreme Court dismissed the SLP, as the learned Additional Solicitor General acknowledged the correctness of the High Court's decision. The Tribunal, in line with the High Court's ruling, set aside the impugned order and allowed the appeal, thereby upholding the right of the assessee to claim a refund of unutilized CENVAT Credit upon the closure of their factory.