Custom, Excise & Service Tax Tribunal
Ms Usha Martin Limited vs Agra on 28 March, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH
EXCISE Appeal No.70693 of 2018
(Arising out of Order in Appeal No. 152-CE/APPL-KNP/LKO/2018 dated
22.2.2018 passed by Commissioner (Appeals), Central Excise & Central Goods
and Service Tax, Lucknow)
M/s. Usha Martin Limited ...Appellant
12/16, Nawal Ganj, Yamuna Bridge,
Agra-282006
Versus
Commissioner of Customs, ....Respondent
Central Excise& Central GST, Agra 113/4, Sanjay Place, Agra APPEARANCE:
Mr. Arvind Baheti (CA) and Mr. Utkarsh Malviya, Advocate for the appellant Mr. Amit Bharadwaj, Authorised Representative for the Respondent CORAM :HON'BLE Mr. Ashok Jindal, MEMBER (JUDICIAL) HON'BLE Mr. P. Anjani Kumar, MEMBER (TECHNICAL) Date of Hearing:9.3.2022 Date of Decision: 28.3.2022 FINALORDER No.70088/2022 ASHOK JINDAL The appeal was heard by Division Bench of this Tribunal on 20.2.2020 and order was passed but due to pandemic Covid-19 situation detailed order could not be dictated and one of the Member of the Bench has not signed the operative part of the order. Therefore, the Hon'ble President by exercising his powers confirmed under order no. 4/2009 dated 17.7.2009 as amended by order number 1/2010 dated 6.1.2010 approved for re-listing the matter on 1.2.2021. Therefore, this matter has come before us. 2
E/70693/2018
2. The facts of the case are that the appellant was engaged in manufacturing activity of TMT Bars. They were availing cenvat credit on input, input services and paying duty by utilising Cenvat Credit. The appellant closed the factory and stopped the production of finished goods. Consequently, on 19.4.2016 the appellant applied for refund claim of unutilised Cenvat Credit lying in their Cenvat Credit account as on 31.3.2016 of Rs. 6,03,83,610/-.As there is no provision in Central Excise Rules made thereunder for grant of refund for unutilised Cenvat Credit, therefore, a show cause notice was issued to the appellant for rejection of the refund claim and the same was adjudicated and it was held that refund claim is not maintainable as there is no such provisions in the Central Excise Act or Cenvat Credit Rules for refund of Cenvat Credit lying unutilised in Cenvat Credit Account on closure of the factory. Aggrieved from the said order, the appellant is before us.
3. The learned counsel for the appellant submits that the case initially has been decided by Hon'ble High Court of Karnataka in the case of UOI v Slovak India Trading Co. Pvt. Ltd. reported in 2006(201) ELT 559 (Kar.) which has been upheld by the decision of the Hon'ble Supreme Court reported in 2008 (223) ELT A170 (SC). He also drew our attention to the decision of the Hon'ble Allahabad High Court in the case of Modipon Ltd. v Commissioner reported in 2016 (324) ELT A84 (All) has allowed the appeal of the appellant and thereafter on 8.10.2018 relying on the decision in the case of CCE & ST Noida v M/s. Molex India (P) Ltd. 2017 SSC online CESTAT 1025 granted 3 E/70693/2018 the refund to the appellant. He also relied on the decision of this Tribunal in the case of Shree Krishna Paper Mills & Ind. Ltd. vs. CC & ST Gurgaon reported in 2019 (365) ELT 594 (Tri- Chan.).
4. On the other hand, learned AR opposed the contention of the learned Counsel and submits that there was contrary view on the issue and the order of Allahabad High Court in the case of Modipon Ltd. (Supra) has been challenged before the Hon'ble Apex Court and the appeal has been admitted. Therefore, the matter be kept pending till the decision of the Hon'ble Apex Court.
5. Heard the parties. Considered the submission.
6. We find that the hon'ble jurisdictional High Court has already held that on closure of the factory, the assessee are entitled for refund claim lying unutilised in their Cenvat Credit Account in case of Modipon Ltd. (Supra).Although the said order has been challenged by the Revenue before the Hon'ble Apex Court but no stay has been granted by the Hon'ble Apex Court. In these circumstances, relying on the decision of the Hon'ble High Court of Delhi in the case of Principal Commissioner, Central Excise Delhi v Space Telelink Ltd. reported in 2017 (355) ELT 0189 (Del), the Hon'ble Delhi High Court has held that unless and until the order is set aside the sanctity of the order remains. As order of the Hon'ble High Court of Allahabad in the case of Modipon Ltd. (Supra) has not been set aside till yet, therefore, relying on the decision in the case of Modipon Ltd. (Supra), we hold that the 4 E/70693/2018 appellant is entitled for refund claim lying unutilised in their Cenvat Credit account on closure of the factory.
7. In view of this, the impugned order is set aside and the appeal is allowed with consequential relief.
(Order pronounced in the open court on 28.3.2022) (ASHOK JINDAL) MEMBER (JUDICIAL) (P. ANJANI KUMAR) MEMBER (TECHNICAL) Bhanu