Transitional Credit if could not be claimed, does not confer the Right to Claim Refund but merely saves the right prevailed under erstwhile laws

M/S RUNGTA MINES LIMITED VERSUS THE COMMISSIONER OF CENTRAL GOODS & SERVICE S TAX AND CENTRAL EXCISE, THE COMMISSIONER (APPEALS) , CENTRAL GOODS & SERVICES TAX AND CENTRAL EXCISE, 2, THE ASST. COMMISSIONER, CENTRAL GOODS & SERVICES TAX AND CENTRAL EXCISE, DIVISION I, JHARKHAND [2022 (2) TMI 934 - JHARKHAND HIGH COURT]

Facts of Case as Follows

1. Assessee is a manufacturer of goods and eligible for claim of Cenvat Credit in ER-1
2. He has received invoices of Input Services eligible for Cenvat Cedit in September 2017 payment was made in April 2017 and Invoice has date of 23.05.2017
3. As the Invoice was received in September 2017, hence Cenvat Credit cannot be claimed in ER-1, Cenvat Credit was claimed in ST-3 returns
4. Petitioner filed the refund claimed u/s 11B of Central Excise provisions which was rejected by Original Authority and Appellate Authority read with Section 142(3) of CGST Act, 2017
5. Assessee has not claimed the Cenvat Credit claimed in ST-3 returns as Transitional Credit u/s 140

Hon’ble Court Observations and Pronouncement

1. Section 142(3) does not confer a new right which never existed under the old regime except to the manner of giving relief by refund in cash if the person is found entitled under the existing law in terms of the existing law.
2. Section 142(3) does not create any new right on any person but it saves the existing right which existed on the appointed day and provides the modalities for refund in cash if found entitled under the existing law as the entire claim is mandated to be dealt with as per the existing law.
3. It neither revive any right which stood extinguished in terms of the existing law nor does it create a new right by virtue of coming into force of CGST, Act.
4. Section 174 of the CGST Act in does not create any new right which never existed on the appointed day i.e on 01.07.2017 under the existing law.
5. The second proviso to section 142(3) cannot be said to be an eligibility condition to claim refund but is only a condition which governs refund as an assessee cannot be permitted to have transitional credit as well as refund of the same tax amount.
6. Section 140(5) applies under the circumstances where input services are received after the appointed day but the tax has been paid by the supplier under the existing law within the time and in the manner prescribed with a further condition that the invoice etc are recorded in the books of account of the such person within a period of 30 days from the appointed day.
7. Petitioner on the one hand illegally took credit of service tax on “port services” as credit in their ST-3 return and on the other hand filed application for refund of the same amount under section 142(3) of the CGST, Act which is certainly not permissible in law. The authorities have rightly considered these aspects of the matter also while rejecting the application for refund filed by the petitioner.
8. The petitioner was also not entitled to refund on account of the fact that the petitioner had already taken credit of the service tax paid on port services in ST-3 Return of service tax although admittedly the petitioner was not entitled to take such credit in ST-3 Return