2019 (7) TMI 492 - HC - Central Excise

Cash refund - assessee is unable to utilize credit on inputs - clause (c) to the proviso to section 11B(2) of the Central Excise Act, 1944 - HELD THAT - The issue decided in the case of M/S. GAURI PLASTICULTURE P. LTD., BOMBAY DYEING MANUFACTURING CO. LTD., M/S. SIMPLEX MILLS CO. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, INDORE, THE COMMISSIONER OF CENTRAL EXCISE, MUMBAI IV, THE UNION OF INDIA THROUGH THE COMMISSIONER OF CENTRAL EXCISE MUMBAI I 2019 (6) TMI 820 - BOMBAY HIGH COURT where it was held that the transitional provision does not enable us to hold that the amount of un-utilised Cenvat Credit can be refunded in cash. The substantial question of law is answered in the negative i.e. in favour of the Appellant-Revenue and against the Respondent-Assessee - appeal allowed.

Summary

Issues:
Challenge to order under section 35 G of the Central Excise Act, 1944 regarding cash refund under clause (c) to the proviso to section 11B(2) where an assessee is unable to utilize credit on inputs.

Analysis:
The judgment delivered by the High Court of Bombay pertains to an appeal challenging the order passed by the Customs, Excise & Service Tax Appellate Tribunal (Tribunal) under section 35 G of the Central Excise Act, 1944. The main question of law raised in this case was whether cash refund is permissible under clause (c) to the proviso to section 11B(2) of the Act when an assessee is unable to utilize credit on inputs. The appellant, represented by learned counsel Mr. Jetly, urged this reframed question for consideration by the court.

The court admitted the appeal based on the substantial question of law presented by the appellant. It is noted that no other issues from the impugned order were raised by the Revenue during the proceedings. The parties agreed that the issue at hand had already been addressed in a previous decision by a larger Bench of the court in the case of M/s. Gauri Plasticulture P. Ltd. vs. The Commissioner of Central Excise, Indore. In that decision, the court had considered the same question and ruled in favor of the Revenue and against the Assessee.

Based on the precedent set by the larger Bench in the M/s. Gauri Plasticulture case, the court answered the substantial question of law in the negative, favoring the Appellant-Revenue and ruling against the Respondent-Assessee. Consequently, the court allowed the appeal in favor of the appellant. The judgment serves as a significant legal interpretation of the provisions of the Central Excise Act, 1944 regarding cash refunds in cases where credit on inputs cannot be utilized, providing clarity on the applicable legal principles.