Refund of unutilized CENVAT credit due to closure is not permitted under Section 11B(2)(c) post 01.04.2012 amendments.

P. ANJANI KUMAR:

The appellants, M/s Mann Feeds Private Limited, are engaged in the manufacture of diapers; they manufactured diapers on behalf of M/s Kimberly Clark Lever Ltd by installing a separate machinery; On the expiry of contract they have discontinued the manufacturer on 30.09.2014; they filed an application for refund, dated 07.10.2014, of Cenvat Credit lying as balance in their books; original authority rejected the refund vide order-in- original dated 22.01.2015; Commissioner (Appeals) on an appeal preferred by the appellants, remanded the matter back to original authority to examine whether the appellants closed manufacturing activity and to pass a speaking order; the appellants surrendered the registration on 10.10.2016; in remand proceedings, the original authority again rejected the refund claim vide order dated 02.07.2019 on the ground that there was no provision available for such refund; first appellate authority, vide impugned order dated 05.12.20019 upheld such rejection. Hence, the appeal.

2. Ms. Krati Singh, learned counsel for the appellants, submits that the appellant is entitled to receive the refund of unutilized credit on account of closure of the manufacturing unit, more so, as it is not disputed that the appellants have surrendered their registration; the appellants have claimed the refund as the CENVAT credit could not be utilized in any manner; clause-(c) to Proviso of Section 11B (2) of Central Excise Act, 1944 permits such refund subject to the only condition that the credit is availed in accordance with the Rule and Notifications issued thereunder. She submits that the issue is no longer res integra having been decided by the various Courts and Tribunals as follows:

 Shree Krishna Paper Mills and Ind. Limited vs. Commissioner of Central Excise and St., Gurgaon 2018 (4) TMI 1155 CESTAT CHANDIGARH (Affirmed by P&H High Court at 2019 (12) TMI 1348)

 Welcure Drugs & Pharmaceuticals Ltd. vs. CCE, 2018 (15) G. S. T. L. 257 (Raj.)

 ATV Projects India Ltd. vs. Commissioner of Central Excise & Service Tax, Raigad 2023 (9) TMI 802 - CESTAT MUMBAI

 Usha Martin Limited vs. Commissioner of Customs, Central Excise & Central GST, Agra 2022 (3) TMI 1317 - CESTAT ALLAHABAD

 Commissioner of Central Excise, vs. Mahindra & Mahindra Ltd 2018 (5) TMI 25 - KARNATAKA HIGH COURT

 CST vs. Apex Drugs and Intermediaries-2015 (322) E.L.T. 834 (Α.Ρ.)

 Bangalore Cables P. Ltd. Vs. CCE - 2017 (347) E.L.T. 100 (Tri. - Bang.)

 Rama Industries vs. CCE, Chandigarh-2009-TIOL-100- HC-P&H

 Slovak India Trading Co. Pvt.Ltd.-2008 (10) STR 101 (Kar.) [upheld 2006 (205) E.L.T. 956 (Tri. - Bang.)] [maintained in Supreme Court at 2008 (223) E.L.T. A170 (S.C.)]

 CST vs. Ishan Copper-2018 (8) TMI 794 - GUJARAT HIGH COURT

3. She further submits that learned Commissioner (Appeals) has relied upon the judgment of the Hon’ble Bombay High Court in the case of Gauri Plasticulture – 2019 (6) TMI 820 (Bom. HC); however, Hon’ble High Court of Punjab & Haryana distinguishes the case while rendering the judgment in Shree Krishna Paper Mills (supra) and relied on the decision of Hon’ble Supreme Court in the case of Slovak India (supra). She submits that it is a settled principle of law that when there are conflicting decisions of the various High Courts, then, the decision of the jurisdictional High Court shall be binding on the sub-ordinate Courts. She relies on the following cases:

 Commr. of Cus., C. Ex. & Service Tax vs. Andhra Sugars 2015 (319) ELT 297 Α.Ρ.

 J.K. Tyre & Industries Ltd. vs. Asst. Commr. of C. Ex., Mysore 2016 (340) E.L.T. 193 (Tri. -