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TMI Blog2017 (4) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to be retained when legally Revenue is not entitled to such money. Moreover, in Formica India Division v. Collector of Central Excise - [1995 (3) TMI 98 - SUPREME COURT OF INDIA] Court has also observed that refund should not be denied on technical grounds. - Decided against the Revenue. - Central Excise Appeal No. 214 of 2016 - - - Dated:- 30-8-2016 - Sudhir Agarwal and Dr. Kaushal JayendraThaker, JJ. Shri Krishna Agarawal, Counsel, for the Appellant. ORDER This appeal has arisen from judgment and order dated 15-12-2015 passed by Customs, Excise Service Tax Appellate Tribunal, Allahabad (hereinafter referred to as Tribunal ) in Excise Appeal Nos. 52520 and 53049 of 2014 whereby Tribunal has rejected appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 to September, 2011 was filed for claiming refund of ₹ 6,09,808/- on 28-9-2012. 7. Application was rejected by Assistant Commissioner , Customs Central Excise Division-1 Noida (hereinafter referred to as ACCCE ). The ground taken by ACCCE is that Assessee was not registered during claim period hence not eligible to take refund of Cenvat credit under Rule 3 of Rules, 2004 read with Rule 4 of Service Tax Rules 1994. 8. Assessee preferred an appeal before Commissioner(Appeals) who allowed the same by order dated 28-10-2013 and directed ACCCE to examine to claim of refund subject to verification of documents etc. 9. Commissioner (Appeals) held that Adjudicating Authority wrongly interpreted Section 69 of Finance Act, 1994 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d which has been dismissed by impugned judgment and order relying on the judgment of Karnataka High Court in mPortal India Wireless Solutions P. Ltd. (supra). 12. Learned counsel for appellant has placed before us the rules made for refund of Cenvat credit vide Notification : 5/2006-C.E. (N.T.), dated 14-3-2006. The aforesaid rules have been framed in exercise of powers conferred by Rule 5 of Cenvat Credit Rules, 2004 and in supercession of earlier Notification. It provides that refund of Cenvat Credit shall be allowed in respect of : (a) Input or input service used in the manufacture of final product which is cleared for export under bond or letter of undertaking : (b) Input or input service used in providing output servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Rule 4 provides that refund is allowed only in those circumstances where a manufacturer or provider of output service is not in a position to utilize the input credit or input service credit allowed under Rule 3 of said rules against goods exported during the quarter or month to which the claim relates. 15. We do not find anything in the aforesaid rules which require registration as a condition or eligibility to claim refund. Even Form-A no where suggests that any such condition must be observed. 16. Karnataka High Court in mPortal India Wireless Solutions P. Ltd. (supra) has said in Paragraph 7, as under : Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the procedures and hence the respondent can legitimately claim the benefit of Modvat credit on the yarns used in the manufacture of fabrics for the period in dispute? 18. The third issue was considered by Madras High Court in Paragraphs 16 to 18 of the judgment and it has observed that Assessee had not obtained Central Excise Registration Certificate while manufacturing industrial fabrics and had not followed any Central Excise procedural formalities while clearing such industrial fabrics. This fact was not admitted by Assessee. First Appellate Authority held that Assessee had not fulfilled several conditions stipulated statutorily such as duty paid, nature of inputs, use of duty paid inputs in the manufacture of dutiable finished go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly rendered in the facts of that case. Be that as it may, we are inclined to accept the view taken by Karnataka High Court considering the fact that in the rules of refund of Cenvat credit, we do not find any such requirement of registration as a condition precedent or eligibility condition for claiming refund. 21. Moreover, if refund is otherwise admissible to a party by a Tax Department, interpretation to the Statute which justify refund to the party must be given for the reason that State or Tax Department cannot be expected to retain Revenue which legally is refundable to the party. It should not be allowed to be retained when legally Revenue is not entitled to such money. 22. Moreover, in Formica India Division v. Collector of C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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