JUDGMENT :

S.C. Dharmadhikari, J.

1. This Bench has been constituted pursuant to an order passed on 23rd April, 2018 by a Division Bench of this court comprising of Hon'ble Mr.Justices A.S.Oka and A.K.Menon. In that order, the Division Bench expressed its disagreement with a prior Division Bench view of this court taken in the case of Commissioner of Central Excise vs. Jain Vanguard Polybutylene Ltd.,1020 256 ELT 523 (Bom.)

The Division Bench referred the following questions for opinion of this Larger Bench:-

"(a) Whether cash refund is permissible in terms of clause (c) to the proviso to section 11B(2) of the Central Excise Act, 1944 where an assessee is unable to utilize credit on inputs?

(b) Whether by exercising power under Section 11B of the said Act of 1944, a refund of un-utilised amount of Cenvat Credit on account of the closure of manufacturing activities can be granted?

(c) Whether what is observed in the order dated 25th January 2007 passed by the Apex Court in Petition for Special Leave to Appeal (Civil) No. CC 467 of 2007 (Union of India vs Slovak India Trading Company Pvt Ltd.) can be read as a declaration of law under Article 141 of the Constitution of India?"

2. In terms of this reference, the Hon'ble the Chief Justice constituted this Larger Bench.

3. The facts are already set out succinctly in the referring order. A very brief reference is required to be made thereto in order to appreciate the challenge to the order passed by the said Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai (for short "the CESTAT"). The appellant in Central Excise Appeal No.13 of 2007 was engaged in manufacturing of reisin PVC pipes and fittings. There was a dispute regarding availability of small scale industries exemption ("SSI" for short) under the Notification dated 28th February, 1993. A show cause notice was issued for recovery of dues on clearance of the pipes during the period of denial of this exemption. The order-in-original was passed confirming the demand and a penalty was also imposed. The exemption was denied on the ground that the appellant was manufacturing pipes bearing a mark "Jain Pipe" and that was a brand name. An appeal was preferred to the Commissioner (Appeals) and he allowed the appeal holding that this cannot be considered as a brand name. In view of the order passed in appeal, an application for refund was made seeking refund, but a show cause notice was issued proposing to reject the refund claim of Rs.8,41,043/- out of the total amount claimed on the ground that on surrender of registration certificate on 8th September, 2000, the entire unutilised credit lapses and hence, subsequent reversal made was not permissible.

4. An order-in-original was passed rejecting this refund claim and an appeal was preferred against this order by the appellant. The Commissioner (Appeals) upheld the order-in-original on the ground that the appellant was not entitled to cash refund, but was entitled to credit in Cenvat Account after surrender of the registration certificate. An appeal was preferred by the appellant before the appellate tribunal and that appeal was referred to a Larger Bench. The Larger Bench rendered findings, which have been reproduced in para 5 of the referring order. After the Larger Bench answered the issues referred to it, the regular Bench of CESTAT dismissed the appeal by the order dated 30th March, 2007.

5. The challenge in Central Excise Appeal No. 13 of 2007 is to both orders, whereas, the other appeal was preferred by the Revenue and the backdrop in which that has been preferred is set out in paras 7 and 8 of the referring order. Central Excise Appeal Nos.257 of 2008 and 28 of 2008 were admitted on grounds which have been noted in para 10 of the order under reference.

6. Thereafter, the arguments are noted and the Division Bench was of the view that un-utilised amount of Cenvat Credit availed by the assessee, in the circumstances set out, can be allowed or not is the moot questio