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TMI Blog2020 (8) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Commissioner in respect of amount of Cenvat credit which they could not utilize by the time they closed the factory and surrendered their registration. The refund claim application was filed on 31.10.2017, more than one year after the date of surrender of the central excise registration. The application for refund was rejected by the jurisdictional Assistant Commissioner by his order dated 19.07.2018 on two grounds as follows: (a) The application for refund was filed referring to Rule 10 of the Cenvat Credit Rules, 2004. This rule provides only for utilizing the unutilized Cenvat credit in case the factory is transferred or the factory premises are shifted with intimation to the jurisdictional Assistant Commissioner/ Deputy Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication was under Rule 5 of the Cenvat Credit Rules, 2004, when the factory of the appellant was closed. Relying on the judgment of Hon'ble High Court of Karnataka in the case of UOI vs. Slovak India Trading Company Pvt Ltd - 2006 (201) ELT 569 (Kar.), this Tribunal had allowed such refund. The learned Counsel submitted that in view of the above judgments, they are entitled to refund of the Cenvat credit even though the application was filed beyond the period of one year from the closure of the factory and even though Rule 10 of the Cenvat Credit Rules, 2004 only provides the transfer of credit but not encashment. 5. The learned Departmental Representative, on the other hand, submitted that the fiscal laws must be applied strictly without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person." 8. Rule 10 of the Cenvat Credit Rules, 2004 reads as follows: "Rule 10. Transfer of Cenvat Credit - (1) If a manufacturer of the final products shifts his factory to another site or the factory is transferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the factory to a joint venture with the specific provision for transfer of liabilities of such factory, then, the manufacturer shall be allowed to tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case is not under this rule. The appellant has applied for refund under Section 11B of the Central Excise Act, 1944 read with Rule 10 of the Cenvat Credit Rules, 2004. This rule only provides for transfer of unutilized Cenvat credit but not encashment. The fact that they have subsequently come under GST regime makes no difference and the appellant cannot claim the refund under a legal provision which does not exist. Rule 5 of the Cenvat Credit Rules, 2004 provides for refund of Cenvat credit in case of export of goods or export of services if the assessee is not able to utilize the corresponding Cenvat credit. Earlier, prior to 01.04.2012, this Rule also provided the refund of the Cenvat credit if the Cenvat credit could not be utilized f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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