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TMI Blog2016 (12) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... ash. I do not find any discrepancy in the impugned order. Consequently, the impugned order is upheld and the appeal, being devoid of merit, is dismissed - decided against appellant-assessee. - Appeal No. E/10528/2013-SM - Order No. A/11718 / 2016 - Dated:- 5-12-2016 - Dr. D.M. Misra, Member (Judicial) For the Appellant : Shri S.J. Vyas, Advocate For the Respondent : Shri G.P. Thomas, A.R. ORDER Per Dr. D.M. Misra This is an appeal filed against OIA No.SRP/184/VAPI/2012-13, dt.28.12.2012, passed by Commissioner (Appeals), C.Ex. S.Tax, Vapi. 2. Briefly stated, the facts of the case are that the Appellants had filed a refund claim for ₹ 3,43,507/- on the ground that duty was paid twice; initially on 31.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate submits that once the credit is utilized for payment of duty, the nature of credit is changed and it becomes duty and it is the duty which has been sought as refund. Further, it is contended that the nature of duty does not undergo any change, depending upon the mode of payment, i.e. either through PLA or through credit. The CENVAT credit when utilized for payment of duty, it had acquired the nature of duty. Distinguishing the decision of the Larger Bench in Steel Strips Pvt. Ltd case (supra), the learned Advocate submitted that the issue before the Bench was refund of credit of unutilized amount in cash. The credit remained unutilized since the Department had forced the Assessee to pay the duty through PLA. In such scenario, the Larger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terference. Further, the learned Authorized Representative referring to the subsequent judgment of Larger Bench in the case of Steel Strips case(supra) submitted that the Larger Bench has answered specifically the reference observing that in absence of any provisions of refund of CENVAT Credit by cash, except in case of export, as laid down under Rule 5 of CENVAT Credit Rules 2004, the same cannot be allowed. It is his contention that the judgment referred to by the learned Advocate in the case of Kochar Sung-up Acrylic Ltd (supra), Ramji Packaging Pvt. Ltd (supra), Lohia Polyester Pvt. Ltd (supra), Bangalore Cables Pvt. Ltd (supra), cannot be considered as good law being contrary to the judgment of Larger Bench in Steel Strips case (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except in the case of export. There cannot be presumption that in the absence of debarment to make refund in other cases that is permissible. Refund results in outflow from treasury, which needs sanction of law and an order of refund for such purpose is sine qua non. Law has only recognized the event of export of goods for refund of Modvat credit as has been rightly pleaded by Revenue and present reference is neither the case of otherwise due of the refund nor the case of exported goods. Similarly absence of express grant in statute does not imply ipso facto entitlement to refund. So also absence of express grant is an implied bar for refund. When right to refund does not accrue under law, claim thereof is inconceivable. Therefore, present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India and manufacturer is not in a position to utilise the credit. The refund in cash is granted as an incentive measure to the exporter. We also find force in the submissions of the learned SDR that Section 11B of the Central Excise Act provides for payment of amount of refund to the Applicants only in situations specified in proviso to sub-section (2) of Section 11B of the Central Excise Act. Clause (c) of the said proviso refers to refund of credit of duty paid on excisable goods used as inputs in accordance with the Rules made, or any notification issued, under the Central Excise Act. The provisions of Central Excise Rules in this regard has already been discussed by us wherein except in the case of export of goods, in no other case re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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