Page 231 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ]SAERA ELECTRIC AUTO PVT. LTD. v. COMMR. OF C. EX. & SERVICE TAX, GURGAON-I453

unutilized Cenvat credit in case the factory is transferred or the fac-
tory premises are shifted with intimation to the jurisdictional Assis-
tant Commissioner/ Deputy Commissioner of Central Excise. It
does not provide for cash refund of unutilized Cenvat credit.
(b) The application for refund was filed more than one year after their
Central Excise registration was surrendered by the appellant.
3. Aggrieved, the appellant appealed to the first appellate authority,
who upheld the order of the lower authority in total and rejected the appeal.
Hence this appeal.
4. Learned Counsel for the appellant argued that they had requested
the departmental officers to permit transfer of their CENVAT credit to their other
factory and no decision was taken on such request. Meanwhile, supervening
event in the form of introduction of GST made such transfer and utilization of
Cenvat credit impossible. Therefore, the appellant applied for refund of unu-
tilized Cenvat credit. The same has been rejected by both the lower authorities.
To support his argument, he relied on the following case laws :-
(i) Navdeep Packaging Industries v. CCE, Ahmedabad-II - 2007 (210) E.L.T.
417 (Tri. - Mumbai);
(ii) Shree Krishna Paper Mills & Ind. Ltd. v. CCE, Gurgaon - 2019 (365)
E.L.T. 594 (Tri. - Chan.).
5. In the case of Navdeep Packaging Industries (supra), it has been held
that if an assessee claims unspent PLA balance as refund, the time limit under
Section 11B of the Act does not apply. Section 11B applies only to refund of duty
paid and not any amount lying in balance in the account current (PLA) of the
assessee. In the case of Shree Krishna Paper Mills & Ind. Ltd. (surpa), the applica-
tion was under Rule 5 of the Cenvat Credit Rules, 2004, when the factory of the
appellant was closed. Relying on the judgment of Hon’ble High Court of Karna-
taka in the case of UOI v. Slovak India Trading Company Pvt. Ltd. - 2006 (201) E.L.T.
559 (Kar.), this Tribunal had allowed such refund. The Learned Counsel submit-
ted that in view of the above judgments, they are entitled to refund of the Cenvat
credit even though the application was filed beyond the period of one year from
the closure of the factory and even though Rule 10 of the Cenvat Credit Rules,
2004 only provides the transfer of credit but not encashment.
1 5. The Learned Departmental Representative, on the other hand, sub-
mitted that the fiscal laws must be applied strictly without any intendment as
has been held by the Constitutional Bench of the Apex Court in the case of Dilip
Kumar & Co. [2018 (361) E.L.T. 577 (S.C)]. In the present case, the application is
filed for refund under Section 11B. Section 11B of the Central Excise Act, 1944
provides only for refund of duty paid in cash or through the Cenvat credit. There
is no provision whatsoever under Section 11B for refund of unutilized Cenvat
credit if the factory is closed. The second legal provision relied upon by the ap-
pellant is Rule 10 of the Cenvat Credit Rules, 2004 which also does not provide
for the refund of unutilized Cenvat Credit. Therefore, the appellant is not enti-
tled to refund of unutilized Cenvat credit and the impugned order has correctly
rejected.
6. We have considered the rival submissions and perused the records.
7. Section 11B of the Central Excise Act, 1944 reads as follows :
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1 Paragraph number as per official text.
EXCISE LAW TIMES  1st May 2020  231