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TMI Blog2019 (1) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant needs to be refunded back to the appellant. We find that there are many decisions of the Tribunal as well as the superior Courts, that the Cenvat credit lying with the appellant is also a duty and cannot be treated separately as compared to the Revenue in PLA account. Thus, the appellant is entitled to refund of the Cenvat credit lying unutilised at the time of closure of their factory - appeal allowed - decided in favor of appellant. - Appeal No. E/50099, 50245/2018-DB - A/53520-53521/2018-EX[DB] - Dated:- 28-11-2018 - Mr. Anil Choudhary, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Shri Ashwani Sharma, Advocate, Shri Anurag Mishra, Advocate, Ms. Trapti Gupta, Advocate - For the appellant Shri S.K. Bansal, AR - for the respondent ORDER Per Bijay Kumar : The present appeal is filed against the Order-in-Appeal No. 257-258/CE/DLH/2017 dated 12.10.2017 (for short impugned order ) vide which the ld. Commissioner (Appeals) has upheld the order passed by the original adjudicating authority, wherein she has rejected the refund claim filed by the appellant for an amount of ₹ 1,68,56,178/- on the ground that the refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 13.5.2016 and also subsequently rejected the refund application on 22nd February 2016 on an unsustainable ground without appreciating the facts and provisions of law. 3.3 It is also the submission of ld. Advocate that the first appellate authority failed to appreciate the facts correctly and the appellant s appeal was rejected by him in the impugned order in the following terms: 11. It is seen that, the appellants were working as manufacturers notified under Section 3A of the CEA 1944 and are specifically bound by the provisions of Chewing Tobacco Rules 2010 for the purpose of availing of credit or payment of duty. The said rules while allowing the refund of duty paid in excess on account of ceasing of manufacturing activity do not have any provisions for refund of unutilised credit on similar grounds. The appellants contentions of the refund of such credit being covered under the proviso of rule 5 of Cenvat Credit Rules, 2004 (also referred to as CCR, 2004) read with Section 11B of the CEA 1944 are not legally sustainable as Rule 16(7) specifically restricts the availment of credit only as per provisions of this rule thereby rendering the provisions of CCR, 2004 as being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely on the input received in the factory on the basis of the existing Scheme, incidence following thereto must take place in accordance with the scheme under which the duty had been paid on the manufactured products. In that context, the Supreme Court held that provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assessees concerned. 19. Reading the above to the case on hand in the background of DEPB Scheme and the purpose of Modvat Scheme, we hold that availing of credit is as good as tax payment for the purpose of Rule 57Q of the Central Excise Rules. 3.5 In view of above judgement, it was impressed upon that the credit availed on the input material is as good as the duty paid in cash. Therefore, the first appellate authority has erroneously rejected the refund application of the appellant for the unutilised Cenvat credit, not treating it as a duty, in spite of the fact that the credit availed by the appellant of duty paid during the month on inputs purchased and used to manufacture the final product could not be utilised by the appellant because of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manently shall be calculated on the pro rata basis of the total number of days in the said month and total number of days before the date of receipt of said intimation with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, and the duty paid for the month in accordance with the notification referred to in rule 7 shall be adjusted towards the duty so calculated and on such adjustment, if there is any excess payment, it shall be refunded to the manufacturer by the 20th day of the following month and deficiency, if any, shall be payable by him by the 5th day of the following month. Explanation. - For the purposes of this rule, ceases to work shall not include a manufacturer who ceases to operate his factory for one or two shifts only. 8. It was also impressed upon by the Revenue that as per the provisions of Rule 16(7) of the Rules it is mentioned that except as provided in this rule, no other provisions of Cenvat Credit Rules, 2004 applied in relation to notified goods. But we find that the aforesaid interpretation by the Revenue is not acceptable in view of Rule 16, which is reproduced as under : Rule 16. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 93 of the said Finance (No. 2) Act, 2004, or the Secondary and Higher Education Cess on excisable goods leviable under section 136 read with section 138 of the Finance Act, 2007 or the additional duty of excise leviable under section 85 of the Finance Act, 2005 respectively, on chewing tobacco notified under Section 3A of the Act and manufactured by the manufacturer. (4) The CENVAT credit under sub-rule (1) shall be taken by the manufacturer on the basis of an invoice issued by a manufacturer for clearance of bulk packs of chewing tobacco from his factory. (5) The manufacturer shall maintain proper records for the receipt, disposal, consumption and inventory of the bulk packs of chewing tobacco used for manufacture of chewing tobacco notified under section 3A in which the relevant information regarding the value, duty paid, CENVAT credit taken and utilised, the person from whom such bulk packs have been procured is recorded and the burden of proof regarding the admissibility of the CENVAT credit shall lie upon the manufacturer taking such credit. (6) Where the CENVAT credit has been taken or utilised wrongly, the same along with interest shall be recovered from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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