Per P.G. Chacko :

I have examined the records and heard both sides.

2. The appellants had filed a refund claim dt. 11.4.2000 for Rs. 3,84,129.70 being excess Central Excise duty paid by way of debit in RG-23A Part.II during November, 1995 to April, 1996. The jurisdictional Deputy Commissioner rejected the claim on the ground of unjust enrichment. The aggrieved party preferred appeal to the Commissioner (Appeals). The lower appellate authority held that the claim was not hit by unjust enrichment, but rejected the claim on another ground viz. that duty paid through Modvat account could not be refunded in cash. The present appeal is against the order of the Commissioner (Appeals).

3. Ld. Consultant, Ms. Anita Rastogi for the appellants submits that the lower appellate authority did not properly appreciate the reliance placed by the appellants on the decision of the Tribunal National Organic Chemicals Industries Ltd. Vs. C.C.E. Bombay, 1994 (70) ELT 722. In the cited case, the assessee had claimed a set-off of duty paid on certain inputs against payment of duty on final product in terms of Notification No. 178/77-CE dated 18.6.77. The Asst. Collector rejected the claim of set-off but the Appellate Collector allowed the same. By that time, however, the notification was rescinded by the Central Government and the assessee had started availing Proforma Credit under Rule 56A of the Central Excise Rules. The party could not enjoy the fruit of the Appellate Collector's order in the absence of the notification whereunder they had claimed the set-off. Therefore, they filed a claim for refund of the duty in cash. That claim was rejected by both the adjudicating and first appellate authorities. Hence the party approached the Tribunal. The Tribunal held that, since the party was unable to claim set-off on account of rescission of the relevant notification, they should be granted cash refund of the duty amount. Ld. Consultant has strongly relied on this decision, after pointing out that the department's appeal against the decision was dismissed by the Hon'ble Supreme Court. She submits that, in the instant case, the appellants have not been able to take recredit of the duty amount in the Modvat account due to closure of the manufacturing unit at Hyderabad and that, having regard to such impossibility of taking recredit of the duty, the authorities ought to have granted cash refund. She contextually points out that, on closure of the unit, they had transferred all the capital goods and the inputs in stock to their Mandideep unit. Consultant prays for allowing this appeal with appropriate directions to the departmental authorities.

4. A specific query was put to the consultant as to whether the appellants had applied for transfer of the outstanding credit in their Modvat account to their Mandideep Unit. The consultant has replied to the effect that, by letters dt. 22.6.2000 and 6.7.2001, the appellants had requested the jurisdictional Dy. Commissioner and Asst. Commissioner respectively to either grant the refund in cash or allow the credit to be taken at their Mandideep Unit. She has further submitted that this request is yet to be attended to by the authorities.

5. Ld. JDR, Shri V.K. Verma submits that the facts of the instant case are different from those of the case of National Organic Chemicals (supra). In that case, there was a clear impossibility, which does not exist in the instant case. Ld. DR submits that, in the instant case, it was very much open to the assessee to have their outstanding credit in RG-23A Part.II transferred to Mandideep Unit by invoking the provisions of Rule 57F (20) of the Central Excise Rules, 1944. The appellants did not chose to do so. Therefore the plea of impossibility of taking credit of the duty is without bonafides. Ld. DR therefore submits that the lower appellate authority has rightly not followed the ratio of the decision in National Organic Chemicals (supra). He prays for rejecting the appeal.

6. I h