Commissioner of Central Excise vs Dujodwala Products Ltd.

Revenue challenges the order dated 26 July 2011 of the Settlement Commissioner.

The only submission of Mr. Mishra on behalf of the Revenue, in support of this Writ Petition, is that the opinion of the third member, who is in minority, would reveal that the Respondent has contravened the Cenvat Credit Rules, 2004. In other words, Mr. Mishra would submit that the present Respondent had claimed Cenvat Credit refund in relation to another factory or unit and not pertaining to one from which the credit accrued. In any event, if this course is to be adopted, then compliance with Rule 10 of the Cenvat Credit Rules 2004 would have been necessitated. Therefore, the findings in the majority opinion are erroneous and perverse.

We are unable to appreciate and accept this contention.

The Petitioner relies upon Rule 10 and which envisages transfer of Cenvat Credit from one account/unit to another account/unit. This is not a case of transfer. The Commission has adverted to all the factual materials and concluded that in this case the Cenvat Credit refund has been sought. That may have been in relation to distinct factory or unit, but of the same assessee/applicant. However, for availing of the same, Rule 10 has not been complied with. The Settlement Commission in the majority opinion has held that the Respondent has not in any manner contravened the Rules. There is no prohibition in seeking refund of the accumulated credit pertaining to second unit. That second unit has closed down. It is, in these circumstances, that the Commission allowed the assessee to claim refund.

Findings in para 6.4 of the order of the majority, therefore, do not raise any substantial question of law nor does it reflect any nonapplication of mind. The same does not reflect that the impugned order is vitiated by an error of law apparent on the face of record or perversity either. In these circumstances and when the claim has been granted by relying upon the peculiar fact pertaining to the assessee, then, this is not a fit case for interference in writ jurisdiction and the view taken is a possible one. It is taken in the peculiar facts and circumstances. Hence, no wider question or controversy arises for determination. The Writ Petition is devoid of merit and is dismissed.