By Puloma Dalal, Jayesh Gogri, Chartered Accountants
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Pre-deposit paid through utilisation of CENVAT credit account – Appeal disposed off by way of refund-Appellant opted out of CENVAT credit scheme and therefore not in a position to utilise CENVAT credit – Held, Appellant entitled to claim refund in cash.
Facts:
The appellant pre-deposited amount of Rs. 1 Crore by way of utilisation of CENVAT credit as per the order of the Tribunal. The Tribunal thereafter, set aside the order appealed against by way of remand. The appellant consequently asked for the refund of pre-deposit in cash. The adjudicating authority sanctioned the same but ordered to be utilised through CENVAT credit account. However, in the interim the appellant opted out of the CENVAT scheme and therefore, was not able to utilise the CENVAT. Therefore, appellant asked for refund of pre-deposit in cash.
The appellant relied on the Delhi High Court Judgment in case of Voltas Ltd. 112 ELT 34 to claim refund of pre-deposit on the matter being set aside by way of remand. The Appellant also relied on the decision of Jharkhand High Court in the case of Commissioner vs. Ashok ARC 7 STR 365.
The Department quoting 198 ELT 400 and 183 ELT 38, contended that since the Appellant has paid pre-deposit out of CENVAT account, he is entitled to get refund only through CENVAT credit account.
Held:
The Tribunal distinguished judgments quoted by the Department, stating that it was not known whether in the given case the assessee was entitled to use CENVAT credit or not. Moreover, in the other case the appeal was dismissed being less than Rs.50,000/-. On the other hand, the Jharkhand High Court’s decision has considered the facts identical to the case and had held that the appellant was entitled to claim refund in cash.
Relying on the Jharkhand High Court’s judgment in case of Ashok ARC (supra), the Tribunal held that the appellant is entitled to claim refund of pre-deposit in cash.
