9911796707
TMI Blog2010 (1) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... ; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; ShriM. Shri M.Veeraiyan, Member (T) Shri Ajay Jain, Advocate, for the Appellant. Shri S.K. Bhaskar, DR, for the Respondent. [Order (Oral)]. - This is an Appeal against the order of the Commissioner (Appeals) No. 553/CE/CHD/2007 dated 2-11-2007. 2. Heard both sides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they are not in a position to utilise the refund allowed by way of credit and therefore, seeks refund in cash. He submits that Rule 5 of Cenvat Credit Rules, 2004 read with Section 11B should be invoked to implement the order of the Tribunal dated 10-1-208 upholding the order of the Commissioner (Appeals) and payment in cash should be ordered instead of giving in credit. He relies on the following decisions :- (1) CCE, Trichy v. Sowbagyalakshmi Silicate [2009 (95) RLT 64 (CESTAT-Che)]; (2) DCM Fabrics v. CCE, Jaipur-II [2009 (239) E.L.T. 139 (Tri.-Del.)]; (3) CCE, Jaipur I v. Talforge Pvt. Ltd. [2009 (239) E.L.T. 172 (Tri.-Del)]; (4) CCE, K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of Slovak India Trading Com. Pvt. Ltd. [2006 (201) E.L.T. 559 (Kar.)] has been dismissed [2008 (223) E.L.T. A170 (S.C.)]. The Hon'ble High Court of Karnataka in the said case upheld the decision of the Tribunal that when there was no manufacture in the light of closure of the company, Rule 5 was not available for the purpose of rejection. In the present case, the appellant is very much in business and in fact are availing the benefit under notification No. 50/2003 which provides also for option to opt out of exemption in any financial year. At any rate, when they opted for the benefit of Notification No. 50/03 with effect from 11-4-05, the appellants were having balance of Rs. 1,59,728/- as the Cenvat credit in their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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