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TMI Blog2018 (12) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... d allowed - appeal dismissed - decided against Revenue. - APPEAL No. E/550/2010 - A/31595/2018 - Dated:- 21-12-2018 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) And Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Pawan Kumar Agarwal, Asst. Commissioner/AR for the Appellant. Shri B. Seetharamayya, Advocate/AR for the Respondent. ORDER Per: Mr. M.V. Ravindran 1. This appeal is filed by Revenue against Order-in-Appeal No. 01/2010 (G) CE, dated 08.01.2010. 2. Heard both sides and perused the records. 3. The relevant facts in brief are the respondent herein were registered with Central Excise Department for manufacturing of Rectified Spirit/Denatured Spirit and Fusel Oil; availed facility of CENVAT credit on inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission that appellant has not exported any goods. He relies upon the decision of the Larger Bench in the case of Steel Strips vs. CCE, Ludhiana [2011(269) E.L.T. 257 (Tri.-LB)] and Om Enterprises vs. CCE, Pune-II [2009(234)E.L.T. 683 (Tri.-Mumbai)] for the proposition that refund of unutilised CENVAT credit is only given by Rule 5 and may be applicable only if they are exported. 5. Ld. Counsel appearing for the respondent submits that the same issue is decided Hon ble High Court of Karnataka in the case of Slovak India Trading Company Pvt. Ltd. and by Hon ble High Court of Rajasthan in the case of Welcure Drugs Pharmaceuticals Limited vs. CCE, Jaipur [2018(15) G.S.T.L. 257 (Raj.)] which reiterates the law as profounded by Slovak In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification: Provided that no refund of credit shall be allowed if the manufacturer avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims a rebate of duty under the Central Excise Rules, 2002, in respect of such duty. 11. In our considered opinion, in view of the observations made by the Karnataka High Court in Slovak India Trading Co. s case (supra) and also in Collector of Central Excise, Pune s case (supra) by the Supreme Court, which reads as under : 17. It is clear from these Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave also taken the view against which the SLP was preferred and earlier also the Tribunal granted refund against which the SLP was not preferred. In that view of the matter, the principle of estoppel applies as once the department has accepted the view taken by the Tribunal it will not be appropriate to challenge the same by choosing the present assessee. 13. In our considered opinion, the judicial discipline is required to be maintained. The Tribunal cannot distinguish the High Court judgments. They are bound by the High Court judgments even jurisdictional High Court and at the most they can refer it back prior to distinguish on facts but no authority has been made. Full Bench decision of the Tribunal has to be followed. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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