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454 EXCISE LAW TIMES [ Vol. 372

“Section 11B. Claim for refund of duty and interest, if any, paid on such
duty -
(1) Any person claiming refund of any duty of excise and interest, if any,
paid on such duty may make an application for refund of such duty and in-
terest, if any, paid on such duty to the Assistant Commissioner of Central
Excise or Deputy Commissioner of Central Excise before the expiry of one
year from the relevant date in such form and manner as may be prescribed
and the application shall be accompanied by such documentary or other ev-
idence (including the documents referred to in section 12A) as the applicant
may furnish to establish that the amount of duty of excise and interest, if
any, paid on such duty in relation to which such refund is claimed was col-
lected from, or paid by, him and the incidence of such duty and interest, if
any, paid on such duty had not been passed on by him to any other per-
son.”
8. Rule 10 of the Cenvat Credit Rules, 2004 reads as follows :
“Rule 10. Transfer of Cenvat Credit -
(1) If a manufacturer of the final products shifts his factory to another site
or the factory is transferred on account of change in ownership or on ac-
count of sale, merger, amalgamation, lease or transfer of the factory to a
joint venture with the specific provision for transfer of liabilities of such fac-
tory, then, the manufacturer shall be allowed to transfer the Cenvat credit
lying unutilized in his accounts to such transferred, sold, merged, leased or
amalgamated factory.
(2) If a provider of output service shifts or transfers his business on ac-
count of change in ownership or on account of sale, merger, amalgamation,
lease or transfer of the business to a joint venture with the specific provision
for transfer of liabilities of such business, then, the provider of output ser-
vice shall be allowed to transfer the Cenvat credit lying unutilized in his ac-
counts to such transferred, sold, merged, leased or amalgamated business.
(3) The transfer of the Cenvat credit under sub-rules (1) and (2) shall be al-
lowed if the stock of inputs as such or in process, or the capital goods is also
transferred along with the factory or business premises to the new site or
ownership and the inputs, or capital goods, on which credit has been
availed of are duly accounted for to the satisfaction of the Deputy Commis-
sioner of Central Excise or, as the case may be, the Assistant Commissioner
of Central Excise.”
9. A plain reading of Section 11B shows that it provides for refund of
excise duty paid. It does not provide for the refund of unutilized Cenvat Credit.
The entire Cenvat credit is governed by the Cenvat Credit Rules, 2004, which
provide for availment/utilization of the Cenvat credit. In some specific cases,
refund of unutilized Cenvat credit in cash has also been provided under Rule 5
of the Cenvat Credit Rules, 2004. The appellant’s case is not under this rule. The
appellant has applied for refund under Section 11B of the Central Excise Act,
1944 read with Rule 10 of the Cenvat Credit Rules, 2004. This rule only provides
for transfer of unutilized Cenvat credit but not encashment. The fact that they
have subsequently come under GST regime makes no difference and the appel-
lant cannot claim the refund under a legal provision which does not exist. Rule 5
of the Cenvat Credit Rules, 2004 provides for refund of Cenvat credit in case of
export of goods or export of services if the assessee is not able to utilize the corre-
sponding Cenvat credit. Earlier, prior to 1-4-2012, this Rule also provided the
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