2013 (11) TMI 627 - AT - Central Excise

Stay of Refund - Refund claim under rule 5 of CENVAT Credit Rules, 2004 unable to utilize the credit on account of closure of their factory - Revenue was of the view that there is no provision in law to allow such refund in cash on the ground that the factory is closed Relying upon Steel Strips vs. CCE, Ludhiana 2011 (5) TMI 111 - CESTAT, NEW DELHI Held that - The refund has not been sanctioned yet Thus, at this interim stage the status quo should be maintained till the final disposal of the appeal - stay to the refund granted Decided in favour of Revenue.

Summary

Issues:
1. Interpretation of Rule 5 of CENVAT Credit Rules, 2004 for cash refund of unutilized credit.
2. Applicability of precedents - Steel Strips case and Slovak India Trading Co. Pvt. Ltd. case.
3. Granting stay against the impugned order pending final disposal of the appeal.

Analysis:
Issue 1: The main issue in this case revolves around the interpretation of Rule 5 of CENVAT Credit Rules, 2004 concerning the refund of unutilized credit in cash. The respondent, a company in Goa, had unutilized CENVAT credit of Rs.91,23,836/- due to factory closure. The adjudicating authority rejected the refund claim citing no provision in law for cash refund in such cases. The respondent relied on the decision of the Hon'ble Karnataka High Court in the Slovak India Trading Co. Pvt. Ltd. case, which allowed cash refund in similar circumstances. The Revenue argued that Rule 5 permits cash refund only for inputs used in export-related activities, not for unutilized credits unrelated to exports.

Issue 2: The conflicting judgments of the Larger Bench in the Steel Strips case and the Hon'ble Karnataka High Court in the Slovak India Trading Co. Pvt. Ltd. case are pivotal in this dispute. The Steel Strips case held that cash refund is not allowed for unutilized credits, while the Slovak India Trading Co. Pvt. Ltd. case permitted cash refund in case of factory closure. The lower appellate authority favored the latter judgment, leading to the Revenue's appeal before the Tribunal.

Issue 3: The Tribunal, comprising P R Chandrasekharan, and Anil Choudhary, JJ., considered the arguments from both sides and noted that the refund had not been sanctioned yet. As an interim measure, the Tribunal decided to maintain the status quo by granting a stay against the impugned order until the final disposal of the appeal. This decision ensures that the respondent's right to the refund is preserved pending a conclusive resolution of the legal dispute.

In conclusion, the judgment delves into the nuances of Rule 5 of CENVAT Credit Rules, 2004, and the conflicting precedents regarding cash refund of unutilized credits. The Tribunal's decision to grant a stay reflects a cautious approach to safeguard the interests of the parties involved until a final determination is made on the matter.