Custom, Excise & Service Tax Tribunal
Cce, Tirupati vs M/S. Kores (India) Ltd on 14 December, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH AT HYDERABAD
Bench SMB
Court I
Appeal No. E/325/2009
(Arising out of Order-in-Appeal No. 12/2008 (T) (D) CE dated 31.12.2008 passed by CC & CE (Appeals), Guntur)
For approval and signature:
Honble Ms. Sulekha Beevi, C.S., 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?
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether their Lordship wish to see the fair copy of the Order?
4.
Whether Order is to be circulated to the Departmental authorities?
CCE, Tirupati
..Appellant(s)
Vs.
M/s. Kores (India) Ltd.,
..Respondent(s)
Appearance Shri. Nagraj Naik, Deputy Commissioner (AR) for the Appellant.
None for the Respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member (Judicial) Date of hearing: 14/12/2016 Date of decision: 14/12/2016 FINAL ORDER No.______________________ [Order per: Sulekha Beevi, C.S.] Brief facts are that the respondent has paid duty on capital goods and inputs during May, 1995 while debonding their unit into DTA from EOU. They claimed credit of the duty paid and the same has been denied to them. The respondent carried the issue in appeal and vide Final Order No. 1165/2008, dated 18.08.2008, the Tribunal held the issue in favor of the respondent. Thus, the respondents became entitled for credit. Meanwhile, their unit was closed down. The respondents thereafter filed the present refund claim for refund of the unutilized credit on the ground of the unit being closed down. The refund sanctioning authority granted the refund vide order dated 17.01.2008. The Department filed appeal before the Commissioner (Appeals) and vide the order impugned herein, he rejected the appeal filed by the Department.
2. Hence this appeal.
3. On behalf of the Department, the Ld. AR, Shri. Nagraj Naik, submitted that the appellants have filed refund of credit availed on capital goods under Rule 5 of CENVAT Credit Rules, 2004. He argued that Rule 5 relates to refund in relation to inputs and input services and the same cannot allowed in the case of capital goods. None appeared on behalf of the respondent. The matter was taken for disposal after heard the Ld. AR, as well as perusal of records.
4. The main contention put forward by the Department is that there is no provision in law for refund of the unutilized credit on the ground of the unit being closed. It is also contended that Rule 5 refund relates to inputs and input services and not refund lying in credit availed on capital goods. The Commissioner (Appeals) has relied upon the decision of Honorable High Court of Karnataka reported in the case of UOI Vs. Slovak India Trading Co. Pvt. Ltd., [2006 (201) ELT 559 (Kar.)]. In the said case the Honorable High Court has considered the issue whether assessee eligible for refund when the unit has been closed down. The said decision was maintained by Supreme Court as reported in UOI Vs. Slovak India Trading Co. Ltd., [2008 (223) ELT A 170 (S.C.)]. Though the issue relates to the credit availed on inputs, as the credit availed on inputs, capital goods and input services fall into the common pool of credit, the said decision would be applicable to the capital goods also. In the present case, the issue whether appellant is eligible for credit on capital goods after debonding had travelled up to the Tribunal which was held in favor of assessee. Thereafter, the appellant filed the refund application as during this time, the unit was closed down. In view thereof, I do not find any infirmity in the order passed by the Commissioner (Appeals). The appeal filed by department is dismissed.
(Pronounced & dictated in open court) SULEKHA BEEVI C.S. MEMBER (JUDICIAL) Lakshmi.
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