Page 197 - ELT_1_1st April 2020_Vol 372_Part

2020 ] SHREE FLAVOURS LLP v. COMMISSIONER OF CENTRAL EXCISE, DELHI 83

tion from the said machine was stopped and the Cenvat credit remained unu-
tilised in their books of account. The above refund claims were returned on 13-5-
2016 on the ground that the unit has closed and had surrendered the Central Ex-
cise registration and the balance of Cenvat credit lying unutilised stood lapsed.
However, opportunities for personal hearing was granted to the appellant. After
hearing the appellant, the Ld. Adjudicating authority has rejected the refund
claim on the ground that such refund claim is not admissible under the provi-
sions and Act. The appellant unsuccessfully contested the subject order passed
by the lower adjudicating authority and hence the present appeal before this Tri-
bunal.
3. The Ld. Advocate on behalf of the appellant submits that both the
adjudicating authority and Ld. Commissioner (Appeals) has not applied the pro-
visions of Rule and Act in rejecting their refund claim. The appellant work under
the Rules and Act framed for the packing machine Rules. The appellant has also
filed the requisite declaration as required under the rules, before undertak-
ing/discontinuing any manufacturing activities, which was not found to be in-
correct by the Revenue. The appellant had always acted in a bona fide manner and
everything was done under the knowledge of the concerned official of the de-
partment.
3.1 It is also submitted by the Ld. Advocate that the appellant had de-
posited the duties as payable under the provisions of the rules on pro rata basis
during the impugned period when the machines were operated for the manufac-
turing of the chewing tobacco packed in pouches.
3.2 It is also submitted that initially the department has returned the re-
fund application to the appellant on 13-5-2016 and also subsequently rejected the
refund application on 22nd February 2016 on an unsustainable ground without
appreciating the facts and provisions of law.
3.3 It is also the submission of Ld. Advocate that the first appellate au-
thority failed to appreciate the facts correctly and the appellant’s appeal was re-
jected by him in the impugned order in the following terms :
‘11. It is seen that, the appellants were working as manufacturers no-
tified under Section 3A of the CEA, 1944 and are specifically bound by the
provisions of Chewing Tobacco Rules 2010 for the purpose of availing of
credit or payment of duty. The said rules while allowing the refund of duty
paid in excess on account of ceasing of manufacturing activity do not have
any provisions for refund of unutilised credit on similar grounds. The ap-
pellants contentions of the refund of such credit being covered under the
proviso of Rule 5 of Cenvat Credit Rules, 2004 (also referred to as CCR,
2004) read with Section 11B of the CEA 1944 are not legally sustainable as
Rule 16(7) specifically restricts the availment of credit only as per provi-
sions of this rule thereby rendering the provisions of CCR, 2004 as being in-
applicable in the instant case. The Appellants’ contentions of invoking the
provisions of Cenvat Credit Rules, 2004 as being applicable and they being
eligible for refund of such amount are on frail legal grounds as the Apex
Court in a plethora of decisions have held that, in case of interpreting a tax-
ing statute is to ascertain the intention of the legislature enacting it. The in-
tention of the legislature is primarily to be gathered from the language
used, which means that attention should be paid to what has been language
used, which means that attention should be paid to what has been said as
also to what has not been said. As a consequence, a construction which re-
EXCISE LAW TIMES  1st April 2020  245