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TMI Blog2016 (11) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants by way of cash, the same would amount to making him unjustifiable enrich. It is well settled principles of law that what cannot be done directly should not be allowed to be done indirectly. On surrendering of their licence, the appellants was not allowed to claim the refund of the unutilized credit in the Modvat account, the same would have lapsed. As such, utilization of the same towards payment of disputed demand of duty, after surrendering of their registration, has not led to a situation where the assessee was compelled not to use the credit for regular clearances and had to make payment from PLA. As such, in this case we find that the refund in cash is not to be allowed. The appellant had paid more amount through PLA then t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt out that the issue is no more res integra as the Larger Bench of the Tribunal in the case of Gauri Plasticulture (P) Ltd. vs. CCE, Indore reported in 2006 (202) ELT 199, was considering the same issue. It is his submission that the principles laid down by the Larger Bench will apply. 5. Learned departmental representative, on the other hand, would submit that no evidence was produced to establish that they closed down their projects and they have not surrendered their central excise registration certificate; this is not a case of export so as to grant them refund in cash as Rule 5 of the Cenvat Credit Rules will not apply and there is no merit in the stand of the appellant that they have paid the concerned amount or more from the PLA. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to keep in mind that it is not the refund of unutilized credit, but the credit which has been used for payment of duty at the insistence of the revenue or has been reversed because the Department was of the view that the same is not available for utilization. This is a simple and basic principle of equity, justice and good conscience. Had the Department not prevented the assessee from utilizing the credit otherwise available to him, they would have been in a position to use the same towards payment of duty on their final product, which obligation they had to discharge from their PLA account. As such, on the success of their claim subsequently, if the assessee is maintaining Modvat credit and is in a position to use the same for future clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in September 2000, i.e. before making of debit entry in RG-23 account. As such, even if the amounts towards duty would not have been debited by them in the said account, the same would have been remained unutilized. As such, on the success of their appeal before the Commissioner (Appeals), they cannot claim the refund of the same in cash, inasmuch as on account of such debit entry, they have not discharged any duty out of PLA. If the said refund is granted to the appellants by way of cash, the same would amount to making him unjustifiable enrich. It is well settled principles of law that what cannot be done directly should not be allowed to be done indirectly. On surrendering of their licence, the appellants was not allowed to claim the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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