2005 (12) TMI 131 - AT - Central Excise

Summary

Issues:
1. Availment of Modvat credit on capital goods
2. Disallowance of credit by original authority
3. Allowance of credit by first appellate authority
4. Re-credit disallowed due to unit closure and registration cancellation
5. Request for cash refund declined by Deputy Commissioner
6. Cash refund allowed by Commissioner (Appeals)
7. Appeal by Revenue against cash refund decision

Analysis:
The appeal involved the availing of Modvat credit on capital goods by the respondents, which was disallowed by the original authority. The first appellate authority reversed the decision and allowed the credit to the assessee. However, due to the closure of their unit and cancellation of Central Excise registration, the party could not take re-credit of the amount, leading to a request for cash refund, initially declined by the Deputy Commissioner. The Commissioner (Appeals) later allowed the cash refund, prompting the Revenue to appeal the decision.

The lower appellate authority relied on a Tribunal's decision to support the entitlement of the assessee to cash refund. The appellant sought to distinguish the case by highlighting the reasons for the inability to avail Modvat credit. Reference was made to the CBEC's permission for cash refund only in specific cases like export rebate. Additionally, the provisions of Rule 57S of the Central Excise Rules, 1944, were cited to argue against cash refund of capital goods credit.

The consultant for the respondents relied on previous Tribunal decisions to support the claim for cash refund based on the closure of the unit and surrender of registration, rendering them unable to utilize the Modvat credit. After considering the submissions, the Member (J) concluded that the assessee was eligible for cash refund in this case. Previous Tribunal decisions were cited where cash refund was allowed due to similar circumstances of being unable to avail credit, as in the present case.

It was noted that the respondents were indeed unable to take re-credit due to the closure of their unit and registration surrender. Therefore, the decision to allow cash refund by the Commissioner (Appeals) was upheld, and the appeal by the Revenue was dismissed. The principle followed by the Tribunal in similar cases supported the entitlement to cash refund when the assessee was unable to utilize the credit for any reason, as observed in the present case.