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TMI Blog2019 (2) TMI 1843X X X X Extracts X X X X X X X X Extracts X X X X ..... redit lying unutilised at the time of closure of their factory - Appeal allowed - decided in favor of appellant. - Appeal No. E/3208/2012, E/3223/2012-EX[DB] - Final Order No. 60623-60624/2019 - Dated:- 20-2-2019 - HON BLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND HON BLE MR. BIJAY KUMAR, MEMBER (TECHNICAL) Mr. Anurag Mishra, Advocate for the Appellant Mr. M.S. Dhindsa, Authorised Representative for the Respondent ORDER PER BIJAY KUMAR: These two appeals have been filed against the impugned orders, namely, Order-in-Appeal No. 71/CE/Appl/DLH-IV/2012 dated 09.08.2012 and Order-in-Appeal No. 69/CE/Appl/DLH-IV/2012 dated 06.08.2012 passed by the Commissioner (Appeals), Delhi-IV, Faridabad, by which the Order-in-O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the impugned orders, has travelled beyond the show cause notice and original orders, which is not permissible. (ii) The Commissioner (Appeals) has decided the amount to be refunded on the basis of ratio derived from an illustration given in Form-2, prescribed under Rule 9 of the Capacity Determination Rules, 2010, which was not an issue for adjudication before the adjudicating authority. The reliance was placed on the decision of this Tribunal in the case of Rolmetal Industries vs. Collector of C.Ex. 1993 (67) ELT 740 (Tribunal). (iii) that in terms of third proviso to Rule 63 of Capacity Determination Rules, 2010, there is an express provision which prescribes the maximum amount of Cenvat credit for duty payment and reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to claim the refund of unutilised Cenvat credit lying in the balance at the time of closure of the factory for which due procedure has been followed by the appellant by informing the department about such closure. 7. It is the argument of the Revenue that there is no provision for the grant of Cenvat credit although agreeing that such credit remaining unutilised in the PLA account is refundable. At the juncture, we would like to reproduce the provisions of Rule 17 of the Rules which is as under : Rule 17. Factories ceasing to work. Notwithstanding anything contained in these rules, where a manufacturer permanently ceases to work in respect of all the machines installed in the factory and who has filed an intimation fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit admissible on chewing tobacco in bulk packs. (1) A manufacturer of chewing tobacco notified under section 3A of the Act shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of- (i) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, leviable under the Act; (ii) the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001); (iii) the education cess on excisable goods leviable under section 91 read with section 93 of the Finance (No.2) Act, 2004 (23 of 2004); (iv) the Secondary and Higher Education Cess on excisable goods leviable under Section 136 read with section 138 of the Finance Act, 2007 (22 of 2007); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be utilized towards the payment of the said National Calamity Contingent duty leviable under Section 136 of the Finance Act, 2001, or the education cess on excisable goods leviable under section 91 read with 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this rule, no other provisions of CENVAT Credit Rules, 2004 shall apply in relation to the notified goods. So, the provisions of Cenvat Credit Rules are applicable in the case of this Rule also. 9. We have seen the decision in the case of Delphi-TVS Diesel Systems Ltd. Vs. CESTAT, Chennai 2015 (324) ELT 270 (Mad.), wherein it is held that rules being subordinate legislation, cannot prescribe anything different than prescribed in the Act, rules can occupy a field that is not occupied by Statute. The rule cannot occupy a field i.e already occupied of the statute. In view of the above judgment, the Hon ble High Court its very much intention that the ground taken by the first appellate authority to reject the refund scheme is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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