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TMI Blog2016 (1) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... ient to grant refund to the appellant. The judgments cited at the bar by the ld. counsel for the appellant are fully applicable in the facts and circumstances of this case. In view of the facts and circumstances enumerated, set aside the impugned order and direct the respondent to grant refund within a period of two months from the receipt of the certified copy of the order. - Decided in favour of assessee. - E/1463/2010-Mum - Final Order No. A/2568/2015-WZB/SMB - Dated:- 14-8-2015 - Shri S.S. Garg, Member (J) Shri Rinkey Jassuja, Advocate, for the Appellant. Shri H.M. Dixit, AC (AR), for the Respondent. ORDER This appeal is directed against Order-in-Appeal No. SB/61/TH-I/2010, dated 28-4-2010 vide which the ld. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order the respondent agreed in principle that the appellant is entitled to get the refund but still rejected the same on the ground of non-submission of required documentary evidence. He further submitted that the appellant has filed the copy of ER return along with application for refund which clearly shows unutilised balance of Cenvat credit during the relevant period. In support of their claim of refund, the appellant has relied upon the decision of the Karnataka High Court in Slovak India Trading Co. P. Ltd. reported in 2008 (10) STR 101 (Kar.) = 2006 (201) E.L.T. 559 (Kar.) wherein it has been held by the Hon ble High Court as under : - Refund - Cenvat/Modvat - Unutilised credit - Assessee stopped production due to closure of facto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein it has been held as under : Refund - Cenvat/Modvat - Refund of unutilised credit on the ground of closure of factory - Identical refund claim allowed by High Court of Karnataka in case of Slovak India Trading Co. Pvt. Ltd. [2006 (201) E.L.T. 559 (Kar.)] against which SLP dismissed by Supreme Court [2008 (223) E.L.T. A170 (S.C.)] - Refund allowed - Rule 5 of Cenvat Credit Rules, 2004. 7. On the other hand, ld. AR reiterated the finding on the ground that on closure of the business of the appellant the unutilised Cenvat credit would lapse and moreover the appellant did not file the requisite documents in support of their refund. 8. I have heard the ld. counsel for the parties and with their assistance, perused the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated in the following manner, namely : - Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period - advances received for export services for which the provision of service has not been completed during the relevant period; (E) Total turnover means sum total of the value of (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of sub-rule (1) above and the value of all other services, during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envat credit which he is entitled to as per Rule 5 of the Cenvat Credit Rules, 2004. The rejection of refund claim by the ld. Commissioner is on account of misinterpretation of the rules governing the refund. The ER return submitted by the appellant along with refund application is sufficient to grant refund to the appellant. The judgments cited at the bar by the ld. counsel for the appellant are fully applicable in the facts and circumstances of this case. 10. In view of the facts and circumstances enumerated, I set aside the impugned order and direct the respondent to grant refund within a period of two months from the receipt of the certified copy of the order. (Pronounced in Court on 14-8-2015) - - TaxTMI - TMITax - Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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