2011 (2) TMI 985 - AT - Central Excise

Refund of the pre-deposit - Commissioner (Appeals) allowed the pre-deposits made through modvat account can be refunded in cash - Held that - The Larger Bench of the Tribunal in the case of CCE Indore Vs. Gauri Plasticulture Pvt. Ltd. 2006 (8) TMI 225 - CESTAT, MUMBAI has considered the said issue and has held that for claiming refund of duty paid through modvat credit in cash, an assessee must show that on account of such debit entry in modvat account, he was compelled to pay duty out of PLA or in cash, during the relevant period and as such has suffered, the refund can be granted in cash - However if the said credit was to lye unutilized in the modvat account and an assessee was not in a position to use the same, subsequent refund in cash would only enrich him. There is no finding of fact as to whether the respondent was in position to utilize the said credit otherwise, we set aside the impugned order of Commissioner (Appeals) and remand the matter to him for fresh decision.Stay petition appeal get disposed off.

Summary

Issues:
1. Refund of duty paid through modvat account.
2. Whether refund should be granted in cash or credited to modvat account.
3. Application of the decision in CCE Indore Vs. Gauri Plasticulture Pvt. Ltd.
4. Commissioner (Appeals) decision on refund claim.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Ahmedabad involved a dispute regarding the refund of duty paid through a modvat account. The Tribunal noted that a demand of duty was confirmed against the respondents, and during the appeal process, the respondents debited an amount from their modvat account. Subsequently, the Tribunal allowed the appeal, leading to the assessee becoming entitled to a refund of the pre-deposit made by them.

The issue arose when the original adjudicating authority sanctioned a partial refund and ordered to credit the amount in the modvat account. However, the respondents appealed against this decision, arguing that since they had stopped working, re-crediting the amount in the modvat account would not serve their purpose, and they requested the refund in cash. The Commissioner (Appeals) accepted this plea and allowed the refund claim in cash, which was challenged before the Tribunal.

During the hearing, the Tribunal considered various decisions and highlighted the importance of showing that due to the debit entry in the modvat account, the assessee was compelled to pay duty out of PLA or in cash during the relevant period to qualify for a refund in cash. The Tribunal referred to a decision in the case of CCE Indore Vs. Gauri Plasticulture Pvt. Ltd., where it was held that if the credit in the modvat account remained unutilized and the assessee was unable to use it, a subsequent refund in cash would only enrich the assessee.

Given the above legal principles, the Tribunal set aside the Commissioner (Appeals) decision and remanded the matter for fresh consideration in light of the Larger Bench judgment. The Tribunal emphasized the need to ascertain the factual position regarding the respondent's ability to utilize the credit in the modvat account before deciding on the mode of refund. Finally, all related applications, including the stay petition and appeal, were disposed of accordingly.