2015 (9) TMI 1693 - HC - Central Excise

Refund of CENVAT Credit in cash - petitioner goes out of Modvat scheme - bar under Section 11B of the CE Act or Rule 5 of the Cenvat Credit Rules, 2002 present or not - HELD THAT - Benefit of input/input service used in the final products cleared for export can be put to the credit of the manufacturer/provider of output service, firstly towards duty of excise; secondly towards service tax and only if, for any reason, such adjustment is not possible, refund is allowed. The third option is an exception to the rule. Only and only if the first two options cannot be exercised, the third option can be resorted to. In the instant case, no notification also stands issued by the Central Government. Also, it is not the case of the appellant that adjustment of refund cannot take place against the first two options provided for under the Rule. It is not a case where the appellant has totally closed down his business of manufacture or export. Hence, the Cenvat credit cannot be refunded in cash. Appeal disposed off.

Summary

Issues:
1. Entitlement to refund of Cenvat credit under Rule 5 of Cenvat Credit Rules, 2004.
2. Interpretation of Rule 5 regarding the conditions for refund in cash.
3. Whether the Tribunal correctly denied cash refund in the absence of specific circumstances.

Analysis:

1. The judgment revolves around the appellant's entitlement to a refund of Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004. The Commissioner (Appeals) and the Assistant Commissioner had both acknowledged the appellant's entitlement to the refund, a fact undisputed before the Court.

2. Rule 5 of the Cenvat Credit Rules, 2004, outlines the conditions for refund of Cenvat credit. It specifies that the credit can be utilized towards duty of excise or service tax. Only if adjustment under these two options is not feasible, refund is allowed. The provision states that no refund shall be granted if the appellant avails of drawback or claims a rebate of duty under specific rules.

3. The Court highlighted that the benefit of input/input service used in final products cleared for export should first be utilized towards duty of excise or service tax. In the absence of a notification from the Central Government and no demonstration that adjustment against the first two options is unfeasible, the appellant's claim for cash refund was denied. The judgment emphasized that cash refund is a last resort, applicable only if the preceding options cannot be exercised.

4. The Court concluded that since the appellant had not demonstrated a scenario where adjustment against duty of excise or service tax was impossible, and there was no indication of business closure, the cash refund of Cenvat credit was not warranted. As a result, the substantial questions of law were answered accordingly, and the appeal was disposed of, along with any pending applications.

In summary, the judgment clarified the conditions for cash refund of Cenvat credit under Rule 5 of the Cenvat Credit Rules, emphasizing that such refunds are permissible only as a last resort when adjustment against duty of excise or service tax is unachievable.