Arfat Petrochemicals Pvt. Ltd. Versus CE, C & CGST – CCE & ST, Jodhpur
Central Excise
2018 (7) TMI 908 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 14-6-2018
Appeal No. E/50484/2018 – EX(DB) – A/52271/2018-EX[DB]
Central Excise
Mr. V. Padmanabhan, Member (Technical) And Ms. Rachna Gupta, Member (Judicial)
Represented by Shri Rupender Singh, Advocate for appellant.
Represented by Shri M.R. Sharma, D.R. for the respondent.
ORDER
Per Rachna Gupta:
The Appellant is aggrieved by the Order of Commissioner (Appeals) dated 28.09.2017, vide which the Order-in-Original declining the Appellant to be entitled for refund of accumulated Cenvat Credit after closure of production due to fire accident has been upheld thereby confirming the rejection of refund claim of Rs. 46,28,767/-. The facts relevant for the purpose are:
1. The Appellant is engaged in the manufacture of acrylic fibre falling under Chapter 55 of the Schedule 2 of the Central Excise Tariffs Act
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they are not in a position to utilize the same. The appeal is, accordingly, prayed to be allowed. However, while justifying the challenged order, it is submitted by the D.R. that the Show Cause Notice dated 18.04.2004 was issued in furtherance of the application dated 15.01.2014, seeking refund of unutilized Cenvat Credit lying accumulated in their books of accounts. It is impressed upon that there is no provision which allows refund of accumulated credit lying unutilized except where the same has been accumulated on account of exports under bond. The refund has rightly been rejected. Appeal is, accordingly, prayed to be rejected.
3. After hearing both the parties, we are of the considered view that Rule 5 of the Cenvat Credit Rules, 2004 is relevant for the purpose, which reads as follows:
“Rule 5. Refund of CENVAT Credit: When any inputs are used in the final products which are cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate
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been used in the final product for export. But the fact of the present case is that the Appellant unit had stopped the manufacturing activity due to a fire accident in their premises and the refund has also been claimed solely on the said basis of the balance lying unutilized in their Cenvat Credit account. Thus, admittedly and apparently, appellant's case is not covered by the above said provisions. Though, the Appellant has relied upon M/s Slovak India Trading Co. Pvt. Ltd. case, but as already held above, relevant provision, i.e., Rule 5 of the Cenvat Credit Rules, 2004 refers only to manufacture. In the present case, admittedly, there is no manufacture subject to the closure of the company. Hence, the refund in furtherance of Rule 5 is not available. Accordingly, the present case is held to stand on a different footing. We draw our support from the case M/s Steel Strips vs. CCE, Ludhiana and M/s Super Rubbers, Gurgaon vs. CCE, Gurgaon, 2006-TIOL-656-CESTAT-DEL-LB, both decided
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failed or faulted in some minor or inconsequent aspects which cannot be described as the “essence” or the “substance” of the requirements.
In a plethora of cases, it has been stated by various judicial pronouncements that where, the language is clear, the intention of the legislature is to be gathered from the language used. It is not the duty of the court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The court cannot add words to a statute or read words into it which are not there. The court cannot, on an assumption that there is a defect or an omission in the words used by the legislature. correct or make up assumed deficiency, when the words are clear and unambiguous. Courts have to decide what the law; is and not what it should be.”
6. Since there is no provision under Cenvat Credit Rules, 2004 to permit refu
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