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TMI Blog2018 (4) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... rule 5 of CENVAT Credit Rules, 2004 is a privilege that can be resorted to in relation to goods that are exported. Vide impugned order no. PUN-SVTAX000-APP-100-15-16 dated 23rd September 2015, Commissioner of Service Tax (Appeals), Pune upheld the order of the lower authority by distinguishing the decision of the Hon'ble High Court of Karnataka in Union of India v. Slovak India Trading Co Ltd [2008 (10) STR 101 (Kar.)] which was affirmed by the Hon'ble Supreme Court and placing reliance on the decision of a Larger Bench of the Tribunal in Steel Strips v. Commissioner of Central Excise Ludhiana [2011 (269) ELT 257 (Tri.-LB)] as being more relevant to the facts in the present dispute. 2. The authorised representative appearing for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if there is no production and there is no clearance of finished goods? (c) Whether under the facts and circumstances of the case the Tribunal is right in holding that respondent is entitled for refund even if it goes out of Modvat Scheme or Company is closed. before coming to the conclusion that the Tribunal was correct in setting aside the order of rejection of the lower authorities which had merely denied refund on the ground of non-entitlement under rule 5 of CENVAT Credit Rules, 2002 without examining whether the refund was due under any provision or otherwise to the applicant. 5. On the other hand, in disposing off the reference made to it, the Larger Bench, in re Steel Strips, had been called upon to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een stated earlier that equity, justice and good conscience are the guiding factors for Civil Courts, no fiscal Courts are governed by these concepts, the present reference is bound to be answered in favour of Revenue and it is answered accordingly.' to expressly hold that refund of MODVAT credit lying unutilised in consequence was not consistent with law. 6. It would appear from these decisions that neither assures a precedent to be followed without examining the circumstances of eligibility. Indeed, the Hon'ble High Court of Karnataka did, in re Slovak India Trading Co Ltd, emphasise the importance of scrutinising the circumstances of each claim for refund and directed that a disposal solely on that one statutory ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered assessee or an assessee who is beyond the ambit of Central Excise Act, 1944. We are not here concerned with the former. As far as the latter is concerned, the assessee is within the authority of Central Excise Act, 1944 only to the extent that it produces excisable goods or is in possession of such goods that are yet to be cleared. Without production in process or without possession of processed goods, an assessee is not an assessee but in the same status as the ultimate consumer. 9. For that reason, if an assessee has CENVAT credit balance without any duty on which to apply it, such assessee is an ultimate consumer to the extent that duty or tax has been paid upto the preceding stage and there no scope for setting off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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