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TMI Blog2017 (12) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India v. Slovak India Trading Co. Pvt. Ltd. [2006 -TMI - 606 - HIGH COURT OF KARNATAKA (BANGALORE)], as approved by the Supreme Court, where 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. Appellants are eligible to the refund claim filed by them - appeal allowed - decided in favor of appellant. - E/309/11 - A/91428/2017 - Dated:- 8-12-2017 - Shri Ramesh Nair, Member ( Judicial ) Shri D.B. Shroff, Sr. Advocate with Shri Rakesh Mandavkar, Advocate andMs. Anita Dubey, Advocate for Appellant Shri S.J. Sahu, AC (AR) for Respondent ORDER Per: Ramesh Nair The appeal is dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Ld. Commissioner (Appeals) has wrongly relied upon the Larger bench judgment in case of Gauri Plasticulture (P) Ltd. Vs. CCE, Indore - 2006 (202) ELT 199 (TRI- LB). He submits that the lower authorities have wrongly rejected the claim despite the fact that the accumulated credit was in respect of inputs and input services used in export of goods. That the refund of credit is available where for any reason the assessee is not able to utilize the credit and hence the refund is admissible to them. That all the facts and figures were submitted to the department and the credit had arisen due to export of goods. He submits that ratio of Hon ble High Court of Karnataka judgment in case of UOI Vs. Slovak India Trading Co. Pvt. Ltd - 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 59 (Kar.) = 2008 (10) S.T.R. 101 (Kar.) , wherein it is held that :- 5. There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. Admittedly, in the case on hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed that various case laws in which similar claims were 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot take any other view other than the one approved by the Apex Court, which came before it from the Karnataka High Court. 4. view of this, In the above matter, Appeal is dismissed in limine with no order as to costs. 6. In view of above judgment of the Hon ble High Court of Mumbai which is jurisdictional court of this tribunal bench and with due respect to Larger Bench judgment in case of M/s Gauri Plasticluture above, I am of the view that the ratio of Judgment of Hon ble Karnataka High Court and the jurisdictional High Court i.e Hon ble High Court of Mumbai (supra) would be applicable. Thus I hold that the Appellants are eligible to the refund claim filed by them. 7. The appeal is allowed with consequential relief to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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