Custom, Excise & Service Tax Tribunal
Jain Vanguard Polybutylene Ltd vs Commissioner Of Central Excise, Nashik on 19 June, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/832/08 (Arising out of Order-in-Appeal No. AKD/106/NSK/2008 dated 14.5.2008 passed by Commissioner of Central Excise (Appeals), Nasik.) For approval and signature: Honble Mr.P.G. Chacko Member (Judicial) ======================================================
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 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Jain Vanguard Polybutylene Ltd Appellant Vs Commissioner of Central Excise, Nashik Respondent Appearance:
Shri A.V. Naik, Advocate, for Appellant Shri T. Tiju, J.D.R, for Respondent CORAM:
Honble Mr.P.G. Chacko Member (Judicial) Date of Hearing: 19.06.2009 Date of Decision: 19.06.2009 O R D E R NO..
1. After examining the records and hearing both sides, I find that the short question arising for consideration in this case is whether a claim for refund of unutilized CENVAT Credit availed by the assessee under Rule 5 of the CENVAT Credit Rules, 2004 is liable to be allowed on the ground of closure of their factory. Identical issue arose before the Honble High Court of Karnataka in the case of Union of India vs Slovak India Trading Co Pvt Ltd 2006 (201) ELT 559 (Kar), wherein Their Lordships held as under:
There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. Admittedly, in the case on hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed that various case laws in which similar claims were allowed. The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light of the assessee coming out of the Modvat Scheme. In these circumstances, we answer all the three questions as framed in para 17 against the Revenue and in favour of the assessee.
2. The Union of India filed a Special Leave Petition in the Supreme Court against the above judgement of the High Court. The SLP was dismissed inasmuch as the learned Additional Solicitor General conceded the correctness of the High Courts judgement. Following the Honble High Courts judgement, I set aside the impugned order and allow this appeal.
(Dictated in Court.) (P.G. Chacko) Member (Judicial) rk 2