2021 (8) TMI 813 - AT - Central Excise

Improper Cenvat Credit Transfer to GST: Tribunal Orders Verification and Recovery

Suvikram Plastex Pvt Ltd Versus Commissioner Of Central Tax, Bengaluru North West

The Tribunal held that the appellant wrongly transferred cenvat credit of education cess and higher education cess to GST, leading to a demand for ... Irregular transition of CENVAT Credit - transition of education cess and secondary and higher education cess to GST - HELD THAT:- As far as transition of cenvat credit relating to education cess and higher education cess is concerned, the matter has been finally decided by the Hon’ble Division Bench of the Madras High Court in the case of Sutherland Global Services Pvt. Ltd. [2020 (10) TMI 804 - MADRAS HIGH COURT], wherein the Hon’ble Division has held that the appellant has wrongly transferred the cenvat credit of education cess and higher education cess into TRAN1 under GST which is liable to be recovered from the appellant along with interest and penalty. For verification of these facts, the case needs to be remanded back to the original authority and the original authority will examine the evidences which may be submitted by the appellant relating to these two amounts and thereafter will pass a fresh decision relating to the demand of cenvat credit irregularly transferred to TRAN1 and accordingly interest and penalty will be imposed by the original authority - Appeal allowed by way of remand. Issues:1. Irregular transition of cenvat credit of education cess and secondary and higher education cess to GST.2. Allegations of ineligible credit carried forward to Electronic Credit Ledger under the GST regime.3. Dispute regarding the calculation of the amount of ineligible credit.4. Interpretation of the provisions of Finance Act, 2004 and 2007 regarding education cess and secondary higher education cess.5. Applicability of the decision in the case of Shree Renuka Sugar Limited Vs. CCE.6. Reference to the decision in the case of Sutherland Global Services Pvt. Ltd. Vs. Asst. Commissioner of CGST&CE.7. Analysis of the judgment of the Hon’ble Division Bench of the Madras High Court in the case of Sutherland Global Services Pvt. Ltd.8. Determination of the appellant's liability for transferring cenvat credit into TRAN1 under GST.9. Requirement for remand to the original authority for verification of certain claims and quantification of the irregularly transferred cenvat credit.Analysis:1. The appeal was against the rejection of the appellant's appeal by the Commissioner of Central Tax(Appeals) regarding irregular transition of cenvat credit of education cess and secondary and higher education cess to GST. The Department alleged that the appellant carried forward an ineligible credit to the Electronic Credit Ledger under the GST regime, leading to a demand notice for recovery along with interest and penalty.2. The appellant contended that the impugned order was unsustainable as it did not consider the facts and law properly. They argued that the authorities incorrectly calculated the amount of ineligible credit and failed to acknowledge evidence related to certain amounts within the demand. The appellant also cited legal provisions and previous judgments to support their case.3. The learned AR defended the impugned order, highlighting that the Division Bench of the Madras High Court had set aside a previous judgment relied upon by the appellant. The AR refuted the appellant's claim regarding the calculation of the demand amount, stating that the authorities had not discussed the specific credits in question.4. The Tribunal referred to the judgment of the Hon’ble Division Bench of the Madras High Court, which clarified that unutilized Input Tax Credit could not be transitioned for Cess not subsumed in the GST laws. Based on this judgment, the Tribunal held that the appellant had wrongly transferred the cenvat credit of education cess and higher education cess into TRAN1 under GST.5. The Tribunal acknowledged the appellant's claim regarding the specific amounts within the demand and deemed it necessary for the original authority to reexamine the evidence and quantification. Consequently, the matter was remanded back to the original authority for a fresh decision on the irregularly transferred cenvat credit, interest, and penalty imposition.This detailed analysis covers the issues raised in the legal judgment comprehensively, addressing the arguments presented by both parties and the Tribunal's decision based on legal interpretations and precedents cited.