Custom, Excise & Service Tax Tribunal
Ms Landis Gyr Ltd vs Chandigarh on 4 February, 2022
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CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH AT CHANDIGARH
SINGLE MEMBER BENCH
Appeal No. ST/60477/2021
(Arising out of Order-in-Appeal No.CHD-EXCUS-001-APP-01-2021-22 dated
7.4.2021 passed by the CCE (Appeals), CGST, C.R. Building, Plot No.19,
Sector17C, Chandigarh)
M/s. Landis Gyr Ltd. Appellant
(EPIP, Phase 11, VPO Thana, Tehsil Baddi, Distt. Solan
Himachal Pradesh)
Vs.
CG & ST, Chandigarh Respondent
(C.R. Building, Plot No.19, Sector17C, Chandigarh) Present for the Appellant: Ms.Priyanka Rathi, Advocate Present for the Respondent:Ms. Geetika , AR CORAM; Hon;ble Mr.Ashok Jindal, Member (Judicial) Date of Hearing:02.02.2022 Date of Decision:04.02.202022 FINAL ORDER NO.60041 /2022 Per: Ashok Jindal The appellant is in appeal against the impugned order wherein the refund claim of credit remained unutilized on closure operation has been rejected.
2. The facts of the case are that the appellant is manufacturer of electricity meters and registered with the Central Excise department. On 6.3.2018, the appellant filed refund claim under Rule 5 of Cenvat Credit Rules, 2004 for the credit remained unutilized in their Cenvat credit account on closure of operation from 1.7. 2017. The said claim was rejected by both the authorities. Against the said order, the appellant is before me. 2
3. Ld. Counsel appearing for the appellant submits that the issue has been examined by this Tribunal as well Jurisdictional High Court in the case of Rama Industries Ltd. vs.CCE, Chandigarh-2009-TIOL- 100-HC-PH-CX. He also relied on the following case law:-
(i) Shri Guru Hargobind Steel Industries vs. CST, 2021 VIL 01 CESTAT-Chd
(ii) M/s.Shree Krishna Paper Mills Ltd. vs. CCE & ST, 2018-VIL- 884-CESTAT-CHD-CE
(iii) Welcure Drugs & Pharmaceuticals Ltd. vs. CCE, 2018-VIL- 592-RAJ-CE
(iv) CCE vs. Jain Vanguard Polybutlene Ltd.-2010 (256) ELT 523 (Bom.)
(v) CST vs. Apex Drugs and Intermediaries-2011 VIL 91 AP CE
(vi) Kirlosker Toyota Textile Machinery vs. CCE-2021 VIL 324 CESTAT Del.
(vii) Rama Industries vs. CCE, Chandigarh-2009-TIOL-100-HC-P&H
(viii) Slovak India Trading Co.Pvt.Ltd.-2006 (2001) ELT 559 (Kar)
(ix) Slovak India Trading Co.Pvt.Ltd.-2008 (10) STR 101.
(x) Luv Kush Textile vs. CCE-2017 VIL 397 Raj CE
(xi) CST vs. Ishan Copper-2018-VIL 617 Guj
(xi) JU Pesticides vs. CCE VIL 431 CESTAT Chennai CE
(xii) Nichiplast India v. CCE-2021 VIL 324 CESTAT Del
(xiii) Andhra Sugars 2015 (319) ELT 297 A.P.)
4. On the other hand, ld.AR opposed the contention of the ld. Counsel and submits that no cash refund of unutilized credit on closure of factory can be given in absence of statutory provisions. It is clear from Rule 5 of Cenvat Credit Rules, 2004 has been amended on 1.4.2012 and there is no such provision for cash refund. She also relied on the following decisions:-
(1) Saera Electric Auto Pvt.Ltd. vs. CCE & C, ST, Gurugram-I (2) Phonix Industries Pvt.Ltd. vs. CCE, Raigad-2015 (330) ELT 303 (Tri.-Mum) 3 (3) Purvi Fabrics & Texturise Pvt.Ltd. vs. CCE, Jaipur-II-2015 (319) ELT 551 (SC) (4) CCE vs. Apex Drugs & Intermediaries Limited-201`5 (332) ELT 834 (A.P.) (5) Gauri Plasticulture vs. CCE, Indore-2019 (30) GSTL 224 (Bom.) (6) Steel Strips vs. CCE, Ludhiana-2011 (269) ELT 257 (Tri.-
LB)
5. Heard the parties.
6. Considering the submissions made by both sides, I find that the case law relied upon by the ld.AR has been examined by this Tribunal in the case of Shri Guru Hargobind Steel Industries (supra) and in the case of M/s.Shree Krishna Paper Mills Ltd (supra). Further, in the case of JU Pesticides vs. CCE (supra), the issue came up before this Tribunal and this Tribunal after examining the legal position has allowed the refund vide order dated 3.9.2021. Further, the issue was also examined by this Tribunal in the case of Nichiplast India Pvt.Ltd. vs. Principal Commissioner of CGST & Central Excise, Delhi, wherein it has been observed as under:-
"10. Learned Counsel also relies on the rulings of Hon'ble High Court of Delhi in the case of Brand Equity Treaties Ltd. and others in WPC 11040/2018 being judgement dated 5.5.2020, in a bunch of writ petitions, wherein the Delhi High Court taking notice of the difficulties faced by several assessee who have migrated to GST regime, taking judicial notice that the petitioners had failed in their repeated attempt to file Form TRAN 1 within the stipulated time and/or extended time, which entitles them to avail the Input tax credit. Accordingly, the Delhi High Court permitted them to avail and file relevant TRAN 1 on or before 30.6.2020. Further directing the Revenue to open the online portal to facilitate the petitioners to file form TRAN 1 or accept the same manually. Further, it was observed that other similar situated tax payers should also be entitled to avail the benefit of this judgement. Accordingly, the learned Counsel has urged that as the ruling of Hon'ble Karnataka High Court was confirmed by the Hon'ble Supreme Court, the benefit of same should be available to them also."
has allowed the cash refund on 23.7.2021.
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7. This Tribunal in the case of Kirlosker Toyota Textile Machinery (supra) had an occasion to examine the issue and after examining the various judicial pronouncement on the issue has allowed the cash refund of credit lying unutilized on closure of the operation on 19.08.2021
8. In view of above observation, based on judicial pronouncements, I hold that the appellant is entitled to cash refund under Rule 5 of Cenvat Credit Rules, 2004 of the credit lying unutilized in their Cenvat credit account on closure of operation.
9. In the result, the impugned order is set aside and appeal is allowed with consequential relief, if any. (pronounced on 04.02.2022) (ASHOK JINDAL) MEMBER (JUDICIAL) mk