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TMI Blog2025 (4) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mishra Creations Pvt. Ltd. as the contractor for construction of residential buildings for which the Appellant made payments to the contractor in advance on the basis of money receipts. The Contractor did not charge service tax at the time of raising money receipts. However, at the time of handing over possession of the constructed property, the Contractor raised an invoice dated 26.02.2015, charging Service tax for the entire consideration received/receivable from the Appellant, amounting to Rs. 5,58,015/-. 1.1. The Appellant was eligible to avail CENVAT Credit of the Service tax amount paid to the sub-contractor for the construction of residential property on which Service tax was leviable under the Finance Act, 1994 w.e.f. 01.07.2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim, the appellant has filed this appeal. 2. The appellant submits that they have surrendered their service tax registration on 10.05.2016 as they were no longer rendering "Construction of residential complex" service from financial year 2015-16 and did not intend to render the same in future. Further, it is undisputed that the Appellant was eligible for the unutilised credit of the invoice raised by the contractor. It is a settled position in law that an assessee is eligible to claim refund of the unutilized CENVAT Credit lying in the CENVAT account at the time when the assessee opts to go out of the CENVAT scheme or when the factory is closed. 2.1. In this regard, the Appellant relied on the decision of the Hon'ble Karnatake High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f: * Z Konark v. Commissioner 2025 (1) TMI 479 - CESTAT Kolkata. * Parle Agro Pvt. Ltd. v. Commissioner 2021 (5) TMI 870 - CESTAT ALLAHABAD 3.1. This position is further supported by the decision in the case of Shri Hari Gobind Steel Industries v. Commissioner 2020 (12) TMI 753 - CESTAT CHANDIGARH, where it was held that the appellant is entitled to interest, as per Section 11BB of Central Excise Act from three months after the date of application till the date of grant of refund. 4. The Ld. A.R submits that there is no provision available in the CENVAT Credit rules to refund the unutilized CENVAT Credit. Accordingly, he supported the impugned order rejecting the refund claim. The Ld. A.R further submits that there is no provision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CENVAT credit in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safe guards, conditions and limitations as may be specified by the Central Government by notification : Provided that no refund of credit shall be allowed if the manufacturer avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims a rebate of duty under the Central Excise Rules, 2002, in respect of such duty." 5. There is no express prohibition i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable goods exported and therefore to say that Rule 5 provides for refund of un-utilized Cenvat only in the cases of export of service is incorrect. Thus, I am of the view that accepting this interpretation of the Commissioner (Appeals) would lead to serious anomaly, which cannot be the intention of the legislation. Admittedly, the appellant has a huge credit which is now lying with the Revenue; the appellant has surrendered its Service Tax Registration and they have also paid the service tax liability as on the last date of their business. The law cannot, therefore, lead to a situation where a bonafide tax payer's amount could be denied and withheld, for no fault of his. Further, in such a situation a bonafide assessee cannot be left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Finance Act enable refund to be routed through Section 11B of the Central Excise Act read with Rule 5 of CENVAT Credit Rules. This interpretation is consistent with the principle that the CENVAT credit is a vested right of the assessee which cannot be extinguished merely because the business has closed down. 6.3. Thus, by relying on the decisions cited supra, I hold that the appellant is eligible for the refund of unutilized Cenvat credit. Accordingly, I hold that the impugned order rejecting the refund of unutilized Cenvat credit is liable to be set aside. 7. Regarding the claim of interest, I find that the Appellant had filed the refund application within the stipulated time and has been wrongfully denied the refund. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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