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TMI Blog2014 (6) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... Jain Vanguard Polybutylene Ltd. (2009 (6) TMI 790 - CESTAT, MUMBAI) Judgment of the Hon’ble High Court of Karnataka in the case of Union of India Vs. Slovak India Trading Co. Pvt. Ltd. (supra) was cited before the Larger Bench and it was taken note of, but no reasonings have been recorded as to why the said judgment of the Hon’ble High Court of Karnataka was not applicable in the similar / identical situations. In my view, the judgments of the Hon’ble High Court of Bombay and Karnataka will have to be followed by the Tribunal in an identical / similar situation. In the case in hand, I find that the issue involved is identical to the issue which was before the Hon’ble High Court of Bombay and Karnataka. - Decided in favour of assessee. - Appeal No. : E/1167/2009-SM - ORDER No. A/11053/2014 - Dated:- 10-6-2014 - Mr. M.V. Ravindran, J. For the Appellant : Shri Saurabh Dixit (Advocate) For the Respondent : Shri J. Nagori (A.R.) JUDGEMENT Per: Mr. M.V. Ravindran; This appeal is directed against OIA No.KRS/138-139/VAPI/2009, dt.31.03.2009. 2. The relevant facts in brief are appellant herein closed their manufacturing activities and submitted refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Steel Strips Vs. CCE, Ludhiana - 2011 (269) ELT 257. It is his submission that the judgment of the Larger Bench is squarely covering the issue which is being agitated in this appeal. He would also submit that this bench in the case of M/s. Jai Elastics Pvt. Ltd. in final order no.A/10185/2014, dt.14.02.2014 following the judgment of the Larger Bench in the case of Steel Strips Vs. CCE, Ludhiana (supra) held in the favour of the revenue and produce us a copy of the said order. 5. I have considered the submissions made at length by both sides and perused the records. 6. The only issue involved in the present appeal is regarding refund of accumulated Cenvat Credit upon surrender of central excise registration at the time of closure of the factory. 7. On perusal of the records, it is seen that there is no dispute as to the fact that amount lying in balance in the Cenvat Credit account of the appellant. It is also noted that the first appellate authority has disposed / rejected the appeal relying upon the provisions under Section 11B of the Central Excise Act, 1944 regarding the procedure to be followed as per the rules framed under the Central Excise A ..... 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 Sec. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case on hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed that various case laws in which similar claims were allowed. The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light of the assessee coming out of the Modvat Scheme. In these circumstances, we answer all the three questions as framed in para 17 against the Revenue and in favour of the assessee. 3. The above judgment was subject matter of Special Leave Petition. The Special Leave Petition had been dismissed by a reasoned order. In the said order, the statement of the Learned Additional Solicitor General was recorded by the Apex Court, who had conceded before the Apex Court that the various judgments relied upon by the Karnataka High Court were not appealed against by the Revenue. Notwithstanding this concession, it is not possible to say that the S.L.P. was dismissed in view of the concession given by the Additional Solicitor General. No concession was given with regard to the correctness of the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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