2019 (5) TMI 1804 - AT - Central Excise

Refund of unutilized Cenvat credit - closure of business - rejection on the ground that there is no provision for refund of Cenvat credit lying in their Cenvat credit account unutilized on closure of the business - HELD THAT - Considering the fact that the similar issue came before this Tribunal in the case of M/S. SHREE KRISHNA PAPER MILLS AND IND. LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE AND ST., GURGAON 2018 (4) TMI 1155 - CESTAT CHANDIGARH where it was held that At no stage, it has been questioned to the appellant that for denial of Cenvat credit which are not entitled to them. Moreover, the Revenue collected the duty from the appellant. Although the Revenue was of the view that activity undertaken by the appellant does not amount to manufacture. At the stage of filing of refund claim, Revenue cannot correct their wrong doings. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejection based on unutilized Cenvat credit on business closure.

Analysis:
The appellant appealed against the rejection of their refund claim for unutilized Cenvat credit upon closing their business. The authority below rejected the claim citing no provision for such refunds. The appellant closed their business in December 2010 and filed the refund claim in September 2016. The impugned order was challenged before the tribunal.

The tribunal considered a similar case involving Shree Krishna Paper Mills & Ind. Ltd. vs. CCE, Gurgaon. In that case, the appellant had closed their factory and surrendered their Central Excise registration. They filed a refund claim for unutilized Cenvat credit, which was sanctioned. The tribunal observed that the denial of Cenvat credit cannot be raised at the stage of entertaining a refund claim without challenging the availment of credit. The tribunal differentiated this case from the decision in Steel Strips, where the factory was not closed, and the credit could not be utilized.

The tribunal also referred to other cases like Slovak India Trading Company Pvt. Limited and CCE, Nasik vs. Jain Vanguard Polybutlene Limited to support the appellant's entitlement to the refund claim. The tribunal noted that the jurisdictional High Court in the case of Rama Industries Limited held that the appellant is entitled to claim a refund of unutilized Cenvat credit upon closure of the factory.

The tribunal examined the impugned order and found that the adjudicating authority had correctly allowed the refund claim to the appellant. The revenue challenged this decision before the Commissioner (Appeals), who sent the matter back to the adjudicating authority, which was deemed impermissible. Therefore, the tribunal set aside the impugned order, restored the order of the adjudicating authority, and allowed the appeal in favor of the appellant with consequential relief.

In conclusion, the tribunal upheld the appellant's entitlement to the refund claim based on settled precedents and set aside the impugned order, granting relief to the appellant.