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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 ..... ts that arise for consideration are that (as reproduced from the impugned order): The appellants were manufacturer of tractors falling under Chapter 87. The goods were exempted from payment of duty with effect from 9-7-2004 consequent on issue of Notification No. 23/2004, dated 9-7-2004. 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. (c) The supplementary invoices received in July, 2004 and the same was taken into credit but could not be utilized before 8th July. The refund application is not for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently provisions of rule 9(2) would not apply. 3.2 It is also his submission that the provisions of rules 3, 5 and 6 of the Cenvat Credit Rules do not apply in this case as the question of lapsing of refund does not arise. It is his submission that the decision of the Tribunal in the case of Slovak India Trading Co. (P.) Ltd. (supra) will squarely apply in their case. 4. Ld. DR on the other hand would rely on the decision of the Larger Bench of the Tribunal in the case of Hotline Teletubes Components Ltd. v. CCE 2001 (131) ELT 300 (Trib. - LB) and submit that once the appellant has closed the factory and surrendered the Central Excise Registration certificate, the question of refund of the duty does not arise. It is his submission that in any case the credit of the duty was taken on the inputs which were received and utilized earlier. He reiterated the findings of the lower authorities. 5. We have considered the submissions made at length by both sides and perused the records. The issue involved in this case is regarding the denial of refund claim by the lower authorities of the amount involved which is taken as a credit on the inputs which were used by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 on the inputs which are duty paid and brought into factory premises and utilized in manufacturing of finished goods. It is also seen that the appellants have followed the provisions of rule 6 by reversing the amount of Cenvat credit attributable to the inputs lying in stock on the date of exemption of the goods along with the inputs used in the work-in-process and finished goods. The question of rule 6 getting attracted in this case does not arise. As regards the transitional provisions of rule 11, we find that the transitional provisions are in respect of only the units which are availing benefit of exemption from the whole of the duty of excise leviable on the goods manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowance of Cenvat credit of Rs. 3,72,405 availed on the invoices mentioned in the show-cause notice except Invoice No. 62, dated 19-2-2002. Refund claim was also rejected in terms of section 11B of the Act. It was stated that there is no provision in rule 5 of Cenvat Credit Rules, 2002 with regard to refund. An unsuccessful appeal was filed by the assessee. Thereafter, he moved the Tribunal and the Tribunal has chosen to allow the appeal in terms of the impugned order. It is in these circumstances, the Revenue is before us raising the above referred questions of law. 3. Heard the learned Counsel appearing for the appellant and perused 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 - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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