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TMI Blog2023 (5) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of central excise duty and the corresponding Cenvat credit for an amount of Rs. 42,17,938/-. As such, a refund claim for the said amount of unutilized Cenvat credit was filed by the appellant on 15.04.2019 under Rule 5 of Cenvat Credit Rules, 2004. The appellant, on being enquired, had informed that their factory got closed in the financial year 2016-2017 and they had already applied to disconnect the power supply by their letter dated 19.04.2017 and 10.05.2017. The supply was finally disconnected on 22.09.2017. The appellant also informed that they had migrated under GST, however, had not filed Trans-1 due to which the aforesaid amount of unutilized Cenvat credit could not be carried forward and was still lying in their books of acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Commissioner CGST dated 23.07.2021 in appeal No. 50790 of 2019. It is further submitted that the time line of Section 11B of Central Excise Act, 1944 has been wrongly consider despite that there have been catena of decisions holding that "relevant date" defined under Section 11B of Central Excise Act has no applicability to the refund of accumulated Cenvat credit sought under Rule 5 of Cenvat Credit Rules. It is submitted that the Cenvat credit, in question, got accumulated due to 50% difference in the duty structure on finished goods as compared to inputs and that the manufacturing facility of appellant got shut down in financial year 2016-2017. With these submissions, learned counsel prayed for order under challenge to be set aside and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing are observed to be the admitted facts in the present case :- (i) The appellant's manufacturing unit got closed in financial year 2016-2017 ; (ii) The Cenvat credit got accumulated due to the difference in duty on final products as compared to the imports ; (iii) The refund claim was filed two years later. The aforesaid closure i.e. on 16.04.2019 ; (iv) Despite the closure of factory the service tax registration was not surrendered by the appellant ; (v) The appellant got registered under the subsequent GST regime, however, failed to file the Tans-1 ; (vi) Lastly that the refund claim has been filed under Rule 5 of Cenvat Credit Rules. 8. In the light of these admitted facts, foremost it is necessary to look into the scop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee is not in a position to utilize the Cenvat credit for payment of duty on finished goods cleared for home consumption or cleared for export under rebate claim. (3) The exports have not been made by claiming draw-back or input duty rebate. 10. Though the appellant had relied upon the decision of Karnataka High Court in Slovak India Trading Company Pvt. Ltd. reported as 2006 (201) E.L.T. 559 (Kar.) which was also confirmed by the Hon'ble Supreme Court but the said case declared that refund claims of Cenvat cannot be subjected to limitation of time irrespective. The period involved is prior or post amendment. In the present case, since the refund claim was filed under Rule 5 of Cenvat Credit Rules, 2004 and after it got amended after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittedly, the appellant while registering into new GST regime has not filed Tran-1 showing the impugned unutilized Cenvat credit Section 140 of CGST Act resultantly cannot be invoked. The question of giving cash refund for unutilized lying Cenvat credit does not at all arises. 13. Though the appellant has relied upon two decisions of the Tribunal in Nichiplast India Pvt. Ltd. (supra) and Uttaranchal Cable Network (supra), but perusal of both these decisions shows that in Nichiplast the appellant was held entitled for the refund after closure of the factory for the reason that he did not migrate to the GST Regime and in Uttaranchal the requisite form for Tans-1 qua the unutilized lying balance including the Cenvat credit could not be upload ..... X X X X Extracts X X X X X X X X Extracts X X X X
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