PHOENIX INDUSTRIES (P.) LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) RULE , returnable forthwith. At the request of the counsel for both sides, the petition is taken up for final disposal. By this petition filed under article 226 of the Constitution of India, the order dated 6 November 2012 of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench (C.E.S.T.A.T.) rejecting petitioner's application for early hearing of the appeal is challenged.

(2.) THE issue in appeal for consideration before the C.E.S.T.A.T. is whether the appellant was entitled to refund of unutilized Cenvat Credit amount of Rs. 35,49,815/ - in terms of Rule 5 of the Cenvat Credit Rules, 2004. This amount of Rs. 35,49,815/ - is the unutilized Cenvat Credit available in the petitioner's Cenvat Account as on 3 November 2011 when it stopped its manufacturing activities and surrendered its excise licence to the respondents. It is the case of the petitioner that the issue arising in the appeal before the C.E.S.T.A.T. is covered in their favour by the decision of this Court in C.C.E. v. Jain Vanguard Polybutlene Ltd. [Central Excise Appeal No. 45 of 2010, dated 28 -6 -2010]. Besides, the petitioner also contends that there are decisions of Karnataka High Court and Punjab and Haryana High Court in their favour covering the issue arising in the appeal before the C.E.S.T.A.T.

(3.) WE find that the issue in appeal before C.E.S.T.A.T. is, apparently covered by the decision of this court in the case of Jain Vanguard Polybutlene Ltd., (supra) and the C.E.S.T.A.T. should have allowed the early hearing application and heard the petitioner on merits, particularly, in view of the fact that during the hearing of the application for early hearing of appeal before the C.E.S.T.A.T. the respondents did not dispute the fact that the issue arising in appeal is covered by the decision of this Court in Jain Vanguard Polybutlene Ltd. (supra). Even before us, the respondents have not disputed the above position. Therefore, the issue in appeal before C.E.S.T.A.T. prima facie appears to be covered and should be decided by the C.E.S.T.A.T. while hearing the appeal.