Custom, Excise & Service Tax Tribunal
M/S. Steel Tubes Of India Ltd vs C.C.E. Indore on 9 November, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 2934 of 2009 SM
Date of Hearing: 19.07.2012
Date of decision: 09.11.2012
[Arising out of Order-in-Appeal No. IND-I/162/2009 dated 3.8.2009 passed by the Commissioner of Central Excise (Appeals ), Indore ]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
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1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 : No
of the CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair : Seen
copy of the Order?
4. Whether Order is to be circulated to the : Yes
Departmental authorities?
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M/s. Steel Tubes of India Ltd.
Applicant
Vs
C.C.E. Indore
Respondent
Appearance:
Shri Manish Saharan , Advocate for the Appellants
Shri G.K. Dixit, DR for the Respondent
ORAL ORDER NO . ________________________
Per Archana Wadhwa:
As per facts on record, the appellant surrendered their Central Excise registration on 28.8.06. At the time of surrendering of their registration, they had Cenvat credit balance to the extent of Rs.9,17,190/-. They filed a claim for refund of said credit amount on the ground that their factory is closed and they are unable to utilise the said credit.
2. After issuance of show cause notice and due adjudication of the matter, the refund claim was rejected by the original adjudicating authority. The said order was upheld by Commissioner (Appeals), who observed that there is no provision for refund of cumulated unutilised credit. Hence, the present appeal.
3. I have heard Shri Manish Saharan, learned advocate appearing for the appellant and Shri G.K. Dixit, learned DR appearing for the Revenue.
4. Both sides have relied upon various decisions of the Tribunal as also of judicial courts to buttress their submissions. However, I find that identical issue was the subject matter of Larger Bench decision in the case of M/s. Steel Strips and others, vide their Misc. order No. 292/2011-Ex dated 13.5.20101. The Larger Bench observed as under:
5.16?Modvat law has codified procedure for adjustment of duty liability against Modvat Account. That is required to be carried out In accordance with law and unadjusted amount is not expressly permitted to be refunded. In absence of express provision to grant refund, that is difficult to entertain except in the case of export. There cannot be presumption that in the absence of debarment to make refund in other cases that is permissible. Refund results in outflow from treasury, which needs sanction of law and an order of refund for such purpose is sine qua non. Law has only recognized the event of export of goods for refund of Modvat credit as has been rightly pleaded by Revenue and present reference is neither the case of otherwise due of the refund nor the case of exported goods. Similarly absence of express grant in statute does not imply ipso facto entitlement to refund. So also absence of express grant is an implied bar for refund. When right to refund does not accrue under law, claim thereof is inconceivable. Therefore, present reference is to be answered negatively and in favour of Revenue since refund of unutilized credit is only permissible in case of export of goods and for no other reason whatsoever that may be. As has been stated earlier that equity, justice and good conscience are the guiding factors for Civil Courts, no fiscal Courts are governed by these concepts, the present reference is bound to be answered in favour of Revenue and it is answered accordingly.
5. As is seen from above, the Larger Bench has held that in the absence of expressed grants in the statute for refund of unutilised modvat credit, the same cannot be allowed. Inasmuch as the issue stands decided by the above decision of the Larger Bench, I find no merits in the appellants claim.
6. The appeal is accordingly rejected.
(Pronounced in the open court on 9.11.2012 )
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( Archana Wadhwa ) Member(Judicial)
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