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TMI Blog2010 (8) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and surrendered its registration certificate on 7-8-2007. Refund claims filed in respect of four quarters under Rule 5 of CCR were allowed by the Original Authority. Revenue filed appeals against the Orders-in-Original before the Commissioner (Appeals). Vide the orders impugned in the appeals, the Commissioner (Appeals) sustained the respective orders of the Original Authority granting refund of Cenvat Credit as per the following details :- Sl. No. Appeal No. OIA No. Amount 1 E/71/2009 No. 108 to 110/2008(H-IV)(D)C.E., dated 30-10-2008 Rs. 23,589/- 2 E/72/2009 ---- do--- Rs. 2,97,895/- 3 E/73/2009 ----do--- Rs. 2,04,585/- 4 E/166/2009 No. 123/2008(H-IV)(D)CE dated 18-11-2008 Rs. 3,87,653/- 2. In the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. SDR. She reiterates the grounds taken in the appeals. It is also submitted that in view of the ratio of the decision by Larger Bench of the Tribunal in the case of Gauri Plasticulture (P) Ltd. v. CCE, Indore [2006 (202) E.L.T. 199 (Tri.-LB)], refund of unutilized Cenvat Credit was admissible only of such amounts which the assessee cannot utilise for reasons including closure of his factory to the extent duty paid in cash or out of PLA during the relevant period. The subject claims did not satisfy the conditions of the Rule 5 of Cenvat Credit Rules as interpreted by the Tribunal in the Gauri Plasticulture (P) Ltd. case (supra) and the judgment of the Hon'ble High Court of Karnataka in the case of UOI v. Slovak India Trading Co. Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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." 6. Special Leave Petition filed by the Revenue against this judgment of the Hon'ble High Court of Karnataka was dismissed by the Hon'ble Supreme Court as reported at UOI v. Slovak India Trading Co. Pvt. Ltd. [2008 (223) E.L.T. A170 (S.C.)]. 7. In Gauri Plasticulture (P) Ltd. case (supra), the Tribunal held that an assessee would be entitled to refund of unutilized Cenvat Credit in cash to the extent it had discharged the duty on final products in cash or in PLA during the material period. The Tribunal rejected the contention that refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id in cash or out of PLA during the relevant period." 8. In terms of the ratio of the decision of the Larger Bench of the Tribunal, the respondents have not established whether it was entitled to refund in cash. However, in the Slovak India Trading Co. Pvt. Ltd. case (supra), the Hon'ble High Court of Karnataka has categorically held that Rule 5 of Cenvat Credit Rules was not available to the Department to reject claim for refund of unutilized Cenvat Credit at the time of closure of assessee's factory. The rule did not prohibit such refund. Moreover Rule 5 refers to a manufacturer and the claims were made by the assessee who stopped to manufacture excisable goods. 9. The above judgment was not interfered with by the Hon'ble Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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