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TMI Blog2016 (8) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee coming out of modvat scheme. Therefore, the refund cannot be denied. - Decided in favour of appellant with consequential relief - E/464/2008 - Final Order No. 20610 / 2016 - Dated:- 4-8-2016 - Shri S. S. Garg, Judicial Member and Shri Ashok K. Arya, Technical Member For the Appellant : Mr. G. Shivadass, Advocate For the Respondent : Mr. J. Harish, AR ORDER Per S. S. Garg The present appeal is directed against the impugned order passed by learned Commissioner vide its order dated 24.4.2008 vide which the appellant s appeal was dismissed by upholding the Order-in-Original. Brief facts of the present case are that the appellant is a private limited company registered under Companies Act, 1956 and is engage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order is not sustainable in law as the same has been passed merely on technicalities and without considering provisions of refund in accordance with law and the judgments of the various judicial fora. In support of his submissions, the learned counsel for the appellant relied upon the following decisions: a) Union of India V. Slovak Trading Co. Pvt. Ltd. 2006 (201) E.L.T. 559 (Kar.) affirmed in 2008 (223) E.L.T. A170 (SC) b) CCE V. Apex Drugs Intermediaries Ltd. 2015 (322) E.L.T. 834 (A.P) c) CCE V. Apex Drugs Intermediaries Ltd. 2014 (314) E.L.T. 729 (Tri.-Bang.) d) CCE V. Jain Vanguard Polybutlene Ltd. 2010 (256) E.L.T. 523 (Bom.) e) Century Rayon Twisting Unit V. CCE, 2015 (325) E.L.T. 205 (Tri.-M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the assessee. 2.1. The learned counsel further submitted that the question whether the cash refund is allowable on cenvat credit balance lying unutilized at the time of closure of business is no longer res integra and has been settled by the Apex Court in Union of India V. Slovak Trading Co. Pvt. Ltd. cited supra. It was held that Rule 5 of the Cenvat Credit Rules did not expressly prohibit refund of unutilized cenvat credit where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (319) E.L.T. 551 (S.C) c) Modipon Ltd. Vs. CCE, Ghaziabad 2015 (324) E.L.T. 718 (Tri.-Del.) d) Nav Durga Steel Products Vs. CCE, Chandigarh 2014 (309) E.L.T. 302 (Tri.-Del.) e) Steel Strips Vs. CCE, Ludhiana 2011 (269) E.L.T. 257 (Tri.-LB) f) Phoenix Industries Pvt. Ltd. vs. CCE, Raigad: 2015 (330) E.L.T. 303 (Tri.-Mumbai) 4.I have heard the learned counsel for the parties and perused the relevant material on record. The relevant Rule deal with cenvat credit is Rule 5 of the Cenvat Credit Rules 2004 which is reproduced herein below: Where any input or input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court has observed that the Tribunal is fully justified in ordering refund partly in the light of the closure of the factory and in the light of the assessee coming out of modvat scheme and this judgment of the Hon ble High Court was affirmed by the Hon ble Supreme Court. Further the judgment of the Hon ble High Court has been followed in number of cases by various Tribunals as cited supra. On the other hand the judgments relied upon by the learned AR is not applicable in the facts and circumstances of the present case when the jurisdictional High Court has allowed the refund of unutilized cenvat credit under Rule 5 of the Cenvat Credit Rules 2004 and the same has been affirmed by the Hon ble Supreme Court. In view of this, I am of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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