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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 ..... refund of unutilized Cenvat credit in cash has also been provided under Rule 5 of the Cenvat Credit Rules, 2004. The appellant 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. Hon ble High Court of Karnataka in the case of UNION OF INDIA VERSUS SLOVAK INDIA TRADING CO. PVT. LTD. [ 2006 (7) TMI 9 - KARNATAKA HIGH COURT] has held that refund of the Cenvat credit is admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 Commissioner of Central Excise. It does not provide for cash refund of unutilized Cenvat credit. (b) The application for refund was filed more than one year after their central excise registration was surrendered by the appellant. 3. Aggrieved, the appellant appealed to the first appellate authority, who upheld the order of the lower authority in total and rejected the appeal. Hence this appeal. 4. Learned Counsel for the appellant argued that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 any intendment as has been held by the Constitutional Bench of the Apex Court in the case of Dilip Kumar Co. [2018(361)ELT 577 (S.C)]. In the present case, the application is filed for refund under Section 11B. Section 11B of the Central Excise Act, 1944 provides only for refund of duty paid in cash or through the Cenvat credit. There is no provision whatsoever under Section 11B for refund of unutilized Cenvat credit if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 transfer the Cenvat credit lying unutilized in his accounts to such transferred, sold, merged, leased or amalgamated factory. (2) If a provider of output service shifts or transfers his business on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the business to a joint venture with the specific provision for transfer of liabilities of such business, then, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 for any other reason. In that context, the Hon ble High Court of Karnataka in the case of Slovak India Trading Company Pvt Ltd (supra) has held that refund of the Cenvat credit is admissible under Rule 5 of the Cenvat Credit Rules, 2004 if the factory is closed. Subsequently, this rule has been amended and right now there is no scope of refund of the Cenvat credit which has not been utilized at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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