Custom, Excise & Service Tax Tribunal
Cce, Hyderabad vs M/S. Endeavour Industries Ltd on 12 March, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench SMB
Court I
Date of Hearing: 12/03/2010
Date of decision:12/03/2010
Appeal No.E/766/08; E/CO/288/08
(Arising out of Order-in-Appeal No.30/2008(H-I)CE dt. 10/7/2008 passed by Commissioner(Appeals), Hyderabad)
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
CCE, Hyderabad
..Appellant(s)
Vs.
M/s. Endeavour Industries Ltd.
Respondent(s)
Appearance Mr.U.Raja Ram, JDR for the Revenue.
Ms.L.Madhavi, Advocate for the respondent.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) FINAL ORDER No._______________________2010 Per M.V.Ravindran This appeal is filed by the Revenue against the Order-in-Appeal No.30/2008(H-I)CE dt. 10/7/2008.
2. Heard both sides and perused records.
3. The issue involved in this case is regarding the refund of the balance amount of cenvat credit lying after the closure of the factory. Adjudicating authority rejected the refund claim filed by the respondent. Ld. Commissioner(Appeals) allowed the same relying upon the decision of the Honble High Court of Karnataka in the case of UOI Vs. Slovak India Trading Co. Pvt. Ltd. [2006(201) ELT 559(Kar.)].
4. After considering the submissions made by both sides and perusal of the records, I find that the ld. Commissioner(Appeals) has recorded the following finding:-
. . I have gone through the records of the case and have perused the decision of the Honble High Court of Karnataka. The Honble court while upholding the decision of the Honble Tribunal has ruled that Rule 5 of the Cenvat Credit Rules, 2004 was not available for the purpose of rejection of refund of balance of credit consequent to closure of the factory and the assessee going out of modvat scheme. Thus, it is seen that the lower adjudicating authoritys observation that once the registration is surrendered there is no manufacturer for allowing refund in terms of Rule 5 of Cenvat Credit Rules, 2004 is not based on a proper understanding of the decision given by the Honble High Court of Karnataka. The Honble Tribunal, in the case of Slovak India Trading Co. Pvt. Ltd. Vs. CCE, Bangalore had clearly held that refund has to be made in cash when the assessee goes out of the modvat scheme or the company is closed.
5. I find that the above reproduced findings of the ld. Commissioner(Appeals) are in line of the decision of the Honble High Court of Karnataka and I also find that the said decision was taken to Apex Court in Special Leave Petition and the Honble Supreme Court has dismissed the Special Leave Petition. This dismissal of Special Leave Petition is reported at 2008(223) ELT A170(SC), wherein it is recorded as under:
Delay condoned.
The Tribunal while allowing the appeal filed by the respondent assessee has relied upon the following decisions :
1. Eicher Tractors v. CCE, Hyderabad, 2002 (147) E.L.T. 457 (Tri.-Del.);
2. Shree Prakash Textiles (Guj.) Ltd. v. CCE, Ahmedabad, 2004 (169) E.L.T. 162 (Tri. - Mumbai);
3. CCE, Ahmedabad v. Babu Textile Industries, 2003 (158) E.L.T. 215 (Tri. - Mumbai); and
4. CCE, Ahmedabad v. Arcoy Industries, 2004 (170) E.L.T. 507 (Tri. - Mumbai).
of the Tribunal in which it has been held that the assessee is entitled to refund of the amount deposited if the assessee has gone out of the Modvat Scheme or their unit is closed. Aggrieved against the order of the Tribunal, revenue filed C.E.A. No. 5/2006 in the High Court of Karnataka at Bangalore. The High Court by its impugned order has affirmed the order of the tribunal and dismissed C.E.A. No. 5/2006 filed by the revenue.
Learned ASG appearing for the Union of India fairly concedes that those decisions of the Tribunal, which were relied upon by the Tribunal, have not been appealed against.
In view of the concession made by the learned ASG, this special leave petition is dismissed. The High Court in its impugned order upheld the Tribunals order [2006 (205) E.L.T. 956 (Tri. - Bang.)] holding that there is no expressed prohibition in terms of Rule 5 of Cenvat Credit Rules, 2002 therefore refund claim for unutilized Cenvat/Modvat credit is eligible and refund is to be made in cash when assessee goes out of Modvat scheme or when the factory is closed. [Union of India v. Slovak India Trading Co. Pvt. Ltd. - 2008 (223) E.L.T. A170 (S.C.)]
6. I find that the issue is now squarely settled by the decisions of the Honble High Court and hence, I do not find any merit in the appeal filed by the Revenue. The impugned order is correct and legal and does not suffer from any infirmity. Appeal filed by the Revenue is rejected. Cross-objection filed by the assessee is also disposed of.
(Pronounced and dictated in open court) (M.V.Ravindran) Member (Judicial) Nr 4