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TMI Blog2010 (3) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant had a balance of Cenvat credit of Rs. 15,78,196 on the said date. The appellant preferred a refund claim for this amount. As it was found that the appellants are not entitled for refund, a show-cause notice was issued proposing to deny the refund. The adjudicating authority rejected the refund claim. Aggrieved by the impugned order, the appellants preferred an appeal before the Commissioner (Appeals) on the following grounds:— (a) The appellants are eligible for the refund of balance of amount in their Cenvat credit. Rule 9(2) of the Cenvat Credit Rules, 2002 is not applicable in their case. (b) The appellants had reversed the credit on the inputs lying in stock, and on the finished products as on 8-7-2004. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court in CC47612007 which was dismissed, thereby affirming the order of the High Court of Karnataka. (e) A similar view has been taken by this Tribunal in the case of CCE v. Maha Sree Aruna Chemicals 2008 (230) ELT 571. (f) The appellants also rely on the decision of the Tribunal in the case of STL Products (P.) Ltd. v. CCE 2006 (198) ELT 521 (Trib. - Bang.). (g) In view of the above, the appellants submit that they are entitled to refund of the credit lying in balance in their Cenvat account as on the date of closure of the factory. (h) The original authority rejected the claim on an additional ground that by application of rule 9(2) of Cenvat Credit Rules, the credit held in the Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is taken as a credit on the inputs which were used by the appellants in their final products which were cleared on payment of duty prior to such finished goods being exempted by Notification No. 23/2004-CE, dated 9-7-2004. 6. It is undisputed that the credit of duty paid on the inputs was availed by the appellant on supplementary invoices. It is also undisputed that the appellant had utilized these inputs on the finished goods which were cleared on payment of duty. It is also not in dispute that consequent to issuance of Notification No. 23/2004, dated 9-7-2004 the appellant had reversed Cenvat credit attributable to the inputs lying in stock, inputs found in work-in-process and inputs in the finished goods, lying in stock as o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not in respect of the lapsing of the credit. Rule 3 talks about the eligibility to Cenvat credit, rule 5 talks about refund of the Cenvat credit and rule 6 talks about obligation of manufacturer of dutiable and exempted goods. In the case before us, it is not in dispute that the appellant was eligible to avail Cenvat credit on the Central excise duty paid on the goods prior to 9-7-2004 as their final products were dutiable during the relevant period. It is also seen that the inputs (the credit of duty was availed by them on the basis of supplementary invoices for the revision of prices) were in fact received and utilized prior to 9-7-2004. As regards rule 6, we find that the appellant has, from 9-7-2004, not availed any Cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Excise and Service Tax Appellate Tribunal, Bangalore : (a) Whether under the facts and circumstances of the case the Tribunal is right in ordering for refund even if there is no provision in rule 5 of Cenvat Credit Rules 2002, to refund the unutilized Credit? (b) Whether under the facts and circumstances of the case the Tribunal is right in ordering for refund even if there is no production and there is no clearance of finished goods? (c) Whether under the facts and circumstances of the case the Tribunal is right in holding that respondent is entitled for refund even if it goes out of Modvat Scheme or Company is closed? 2. Respondent-company is engaged in manufacture of shoes for M/s. Bata India Ltd. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used the material placed on record. 4. Admitted facts would reveal of a claim of cash refund and admitted facts would reveal of rejection at the hands of the Assistant Commissioner and also the appellate authority. The Tribunal has chosen to allow the claim application on the ground that refund cannot be rejected when the assessee goes out of Modvat scheme or when the Company is closed. The argument is that there is no provision for refund in terms of rule 5 of Cenvat Credit Rules, 2002. Rule 5 reads as under: "Rule 5. Refund of CENVAT Credit - When any inputs are used in the final products which are cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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