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TMI Blog2024 (10) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... e has relied upon the decision of the Karnataka High Court in Slovak India [ 2006 (7) TMI 9 - KARNATAKA HIGH COURT] . Further, this decision notes that the Hon ble Supreme Court had confirmed the Karnataka High Court order by dismissing the SLP against the same. In effect, therefore, the view taken in Lav Kush Textile based, according to the learned counsel for the Appellant on facts identical to the present case, directly conflicts with the view taken by the Full Bench of this Court in the case of Gauri Plasticulture [ 2018 (4) TMI 1233 - BOMBAY HIGH COURT] . There are no error in the impugned orders made by the CESTAT, since these orders relied upon the decision of the Full Bench in the case of Gauri Plasticulture. Even considering the sl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies at the unit. The learned counsel for the Appellant submits that the duty was paid when the unit/factory was very much operational in the present case. He pointed out that this position has not even been disputed. Accordingly, he submits that the refund ought to have been granted in cash or, in any event, by crediting the same to the Appellant s other operational units. The learned counsel for the Appellant maintained that the position in Gauri Plasticulture P. Ltd. (supra) was different and, therefore, based upon the decision of the Full Bench, the CESTAT could not have denied the refund of either cash or credit to the Appellant. 5. The learned counsel for the Appellant relied on Lav Kush Textiles Vs. Commissioner of Central Excise Jaip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch:- (a) Whether cash refund is permissible in terms of clause (c) to the proviso to Section 11B (2) of the Central Excise Act, 1944 where an assessee is unable to utilize credit on inputs ? (b) Whether by exercising power under Section 11B of the said Act of 1944, a refund of un-utilised amount of Cenvat Credit on account of the closure of manufacturing activities can be granted? (c) Whether what is observed in the order dated 25th January 2007 passed by the Apex Court in Petition for Special Leave to Appeal (Civil) No. CC 467 of 2007 (Union of India Vs. Slovak India Trading Company Pvt. Ltd.) can be read as a declaration of law under Article 141 of the Constitution of India? 11. After a detailed analysis of the legal provisions and sever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en in relation to those inputs which have not been used in the manufacture of the final product or the exported goods. We are called upon to read something in the substantive rule and which is totally absent therein. When Rule 5 follows Rule 4, which is titled as Conditions for Allowing Cenvat Credit , then, we must understand the scheme in such manner as would make the law workable and consistent. Refund of Cenvat Credit in terms of Rule 5 is permissible only when there is a clearance of a final product of a manufacturer or of an intermediate product for export without payment of duty under a bond or letter of undertaking of a service provider, who provides an output service which is exported without payment of tax and by applying the form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the Rajasthan High Court on identical facts. On considering Lav Kush Textile (supra), we find that the same has relied upon the decision of the Karnataka High Court in Slovak India (supra). Further, this decision notes that the Hon ble Supreme Court had confirmed the Karnataka High Court order by dismissing the SLP against the same. In effect, therefore, the view taken in Lav Kush Textile (supra) based, according to the learned counsel for the Appellant on facts identical to the present case, directly conflicts with the view taken by the Full Bench of this Court in the case of Gauri Plasticulture (supra). 14. In the above circumstances, we do not find any error in the impugned orders made by the CESTAT, since these orders relied upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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