Karnataka High Court
The Commissioner Of Central Excise, vs M/S Mahindra & Mahindra Ltd., on 16 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 129
Bench: Ravi Malimath, S G Pandit
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 16TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE S.G.PANDIT
CEA No.220 of 2010
BETWEEN
THE COMMISSIONER OF CENTRAL EXCISE,
NO. 71, CLUB ROAD, BELGAUM.
... APPELLANT
(BY SRI.S.N.RAJENDRA, CGSC)
AND
M/S MAHINDRA & MAHINDRA LTD.,
TRACTOR DIVISION, SKID ASSEMBLY PLANT,
SL. NO. 117/A/1, SATTUR, DHARWAD.
DISTRICT DHARWAD.
... RESPONDENT
(RESPONDENT SERVED AND UNREPRESENTED)
THIS CEA IS FILED UNDER SECTION 35-G OF THE
CENTRAL EXCISE ACT, PRAYING THAT THE FINAL ORDER
NO.625 OF 2010 DATED 22.03.2010 PASSED BY THE
CESTAT BANGALORE PROUDCED AS ANNEXURE "D" MAY
KINDLY BE SET ASIDE AND ETC.,
THIS APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, RAVI MALIMATH, J., DELIVERED THE
FOLLOWING:
:2:
JUDGMENT
This appeal is by the revenue challenging the final order passed by the Tribunal in setting aside the order of the Commissioner and the original adjudicating authority by reversing the same and allowing the appeal in terms of the judgment in the case of M/s.Slovak India Trading Co. Pvt. Ltd., vs. CCE, Bangalore reported in 2006 (205) ELT 956 (Tri.-Bang).
2. The respondent is a manufacturer of tractors. In terms of the notification dated 08.07.2004, the goods manufactured by the respondent were exempted from payment of excise duty from 09.07.2004. The respondent had availed cenvat credit balance of Rs.15,77,730/- BED and Rs.466/- as cess, in all amounting to Rs.15,78,196/-. Since the cenvat credit could not be utilized he asked for a claim of refund on the ground that he has suspended the manufacturing operations from 01.08.2004. A show cause notice was issued to him as to why the refund claim should not be held to be ineligible. His reply was rejected. The adjudicating authority rejected the refund claim. The same was challenged before the Commissioner, :3: who rejected the same. Questioning both these orders, he approached the Tribunal. The Tribunal in terms of the impugned order held that he is entitled for the refund amount and accordingly set aside both the orders. Questioning the same, the revenue has filed this appeal.
3. By the order dated 07.03.2011, the appeal was admitted to consider the following substantial question of law:
"(i) Whether on facts and in the circumstances of the case, the Tribunal is justified in allowing the appeal of respondent holding that the judgment of this Court in the case of Union of India vs. Slovak India Trading Co. Pvt. Ltd., would apply to the facts and circumstances?"
4. In the aforesaid judgment, the Division Bench of this Court held that in view of the fact that there was no manufacture in the light of the closure of the company, Rule-5 of the Cenvat Credit Rules would not be available for the purpose of rejecting the claim for refund. Therefore, the order of the Tribunal was upheld. The said :4: order of the Division Bench of this Court was challenged by the revenue in SLP (CC) No.4761 of 2007, wherein by the order dated 02.03.2007 it was rejected. Therefore, the Tribunal relied on the said order. We do not find any ground to take a different view.
5. In view of the question of law already being answered in the aforesaid judgment, we answer the substantial question of law in favour of the assessee and against the revenue by holding that the Tribunal was justified in allowing the appeal of the respondent by following the judgment of this Court in the case of M/s.Slovak India Trding Co. Pvt. Ltd., vs. CCE, Bangalore reported in 2006 (205) ELT 956 (Tri.-Bang). The appeal is disposed off accordingly.
Sd/- Sd/- JUDGE JUDGE Vnp*