2025 (8) TMI 1653 - AT - Central Excise

Appeal allowed; remand refund for post-GST deposits under Section 142(3) CGST; Rule 9(1)(b) CCR bars refunds for fraud-related duties

Rashtriya Metal Industries Limited Versus Commissioner of CGST & Central Excise, Surat

CESTAT allowed the appeal in part, set aside the Commissioner (Appeals) order and remanded the matter to the first Adjudicating Authority to fresh-decide ... Admissibility of refund claim under Section 142 (3) of CGST Act, 2017 in lieu of CENVAT credit of CVD & SAD, where such CVD & SAD are paid after introduction of GST due to non-fulfilment of export obligations against the goods imported duty free, prior to introduction of GST - applicability of Rule 9(1)(b) of CENVAT Credit Rules, 2004 - HELD THAT:- In Epigral Limited vs. UoI & Ors [2025 (3) TMI 1405 - GUJARAT HIGH COURT], the Hon'ble Gujarat High Court has held that in view of section 142(3) of CGST Act, 2017 any refund accruing to the petitioners after 01.07.2017 is required to be refunded in cash. The Hon'ble Court further held that it is apparent that the respondent authorities could not have referred to and relied upon the provisions of section 142(8)(a) as the same would not be applicable to the facts of the case as the petitioners did not deposit the amount of duties in any recovery proceedings but the petitioners had voluntarily deposited the amount of duties on reconciliation of the imports made by the petitioners with the Advance Authorisation and EPCG license entitlement. Therefore, the case of the petitioners would be squarely covered by provisions of section 142(3) of the CGST Act which provides for considering the refund claim of the petitioners as per the existing law at the relevant time when import was made in the year 2016. The provisions of said Rule 9(1)(b) of Cenvat Credit Rules, 2004, which restricts the credit if the duty becomes recoverable on account of any non-levy or short levy by reason of fraud, collusion or any willful mis-statement or suppression of facts or any contravention of any provisions of Central Excise Act or Customs Act or the Rules made there under, with intent to evade payment of said duties. Therefore, the appellant is not entitled for the Cenvat credit of CVD and SAD paid by them. Since the credit of such duty itself is disallowed therefore claim for refund of said amount is not sustainable. Thus, the view of the adjudicating authority that since the duty was discharged only after being pointed out by the Foreign Trade Development Officer, there was motive of evasion of Tax/Duty and hold that the adjudicating authority's decision that the appellant is not eligible for refund/credit of the said tax in view of Rule 9(1)(b) of Cenvat Credit Rules, 2004. In the present case, the appellant vide letter dated 15.11.2007 applied to DGFT office for issue of export obligation Discharge certificate by clubbing of advance authorisations dated 12.01.2012 and 14.07.2014 but the DGFT office has issued letter dated 16.11.2017 against the said application and rejected the said clubbing of application - there are considerable force in the arguments of learned Counsel for the appellant that issuance of deficiency letter asking for making payment of additional duties of excise on account of import of excess of eligible quantities against advance authorization, is nothing but mere an opportunity provided to regularize the bona fide default made by authorization holder. The issuance of deficiency letter does not tantamount to initiation of assessment or adjudication proceedings unless an action is taken against authorization holder under the FTDR Act for any misrepresentation or misdeclaration. The learned Commissioner (Appeals) and the first Adjudicating Authority have made error in passing the impugned orders. Therefore, the impugned order passed by learned Commissioner (Appeals) dated 28.02.2020 is liable to be set-aside whereas the appeal is liable to be allowed and the appeal is allowed. The impugned order dated 28.02.2020 passed by learned Commissioner (Appeals) is set-aside and the matter is remanded to the first Adjudicating Authority to pass a fresh order on the application filed by the appellant for refund of the amount pertaining to deposit made by them, in the light of observations made in this order. Appeal allowed by way of remand. ISSUES PRESENTED AND CONSIDERED 1. Whether a refund claim under Section 142(3) of the CGST Act, 2017 is admissible in respect of CVD and SAD paid after the appointed day where the underlying imports occurred prior to the appointed day under Advance Authorization and export obligations were not fulfilled. 2. Whether Rule 9(1)(b) of the CENVAT Credit Rules, 2004 operates to deny CENVAT credit (and consequently a refund under Section 142(3)) where duties (CVD & SAD) were paid after being pointed out by the licensing authority through a deficiency letter, in absence of any adjudication or allegation of fraud, willful misstatement or suppression of facts. 3. Whether issuance of a deficiency letter by the licensing authority constitutes initiation of adjudication/assessment proceedings such that restrictive provisions (e.g., Rule 9(1)(b)) apply to deny credit/refund. 4. Whether any refund found due in terms of Section 142(3) must be paid in cash notwithstanding provisions of the erstwhile law permitting credit, and the appropriate remedy and procedural direction on remand. ISSUE-WISE DETAILED ANALYSIS Issue 1: Admissibility of refund under Section 142(3) for CVD & SAD paid after the appointed day where imports were before appointed day Legal framework: Section 142(3) of the CGST Act, 2017 requires that every claim for refund filed before, on or after the appointed day for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law shall be disposed of in accordance with the provisions of the existing law and any amount eventually accruing to the claimant shall be paid in cash (with specified provisos). Precedent treatment: Tribunal and High Court authorities have interpreted Section 142(3) to mandate disposal of refund claims according to the law applicable at the time the amount was paid or the relevant event occurred, and to require cash payment of refunds accruing after the appointed day. Interpretation and reasoning: Where the impugned duties (CVD & SAD) relate to imports effected prior to the appointed day under the erstwhile regime and the claimant validly paid duties after the appointed day to regularise shortfall in export obligation, Section 142(3) entitles the claimant to have the refund considered under the existing law applicable to those imports and to receive any eventual accrual in cash. Reliance on provisions applicable to recovery proceedings was held inapposite where duties were voluntarily deposited to reconcile import entitlements rather than pursuant to recovery or adjudication action. Ratio vs. Obiter: Ratio - Section 142(3) applies to refund claims of CENVAT credit/duty where the underlying act (import) occurred pre-appointed day and the refund must be considered under the erstwhile law with cash payment if accrual arises after appointed day. Obiter - observations on wider interplay of other sub-sections were made in support but are not essential beyond application to facts. Conclusions: A refund claim under Section 142(3) for CVD & SAD paid after the appointed day is admissible where the duties relate to imports prior to the appointed day and were paid to regularise excess imports against Advance Authorization; such refund must be considered under the existing law and, if attributable to post-appointed day accrual, paid in cash. Issue 2: Applicability of Rule 9(1)(b) of the CENVAT Credit Rules, 2004 to deny credit/refund where duties paid after deficiency letter but no adjudication or allegation of suppression/fraud Legal framework: Rule 9(1)(b) (and related clauses) restrict availability of credit where duties become recoverable due to non-levy or short levy by reason of fraud, collusion, willful misstatement or suppression of facts or contravention of law, with intent to evade payment of duties; such restrictions ordinarily follow allegation and adjudication of those defects. Precedent treatment: Tribunal authorities have held that mere payment of duty after being pointed out, without any show-cause notice, adjudication or formal allegation of fraud/suppression, does not engage Rule 9(1)(b). Where payments were made suo moto on reconciliation and no adjudication or offence was initiated, denial of credit under Rule 9(1)(b) was held impermissible. Interpretation and reasoning: Application of Rule 9(1)(b) presupposes findings of fraud, willful misstatement or suppression of fact (or related contraventions) established through adjudicatory process. A deficiency letter requesting regularisation is an intimation/opportunity to regularize bona fide defaults and, absent initiation of proceedings under relevant statutes or express allegations, cannot be treated as equivalent to adjudication or a finding of malafide conduct. Therefore, denial of credit/refund solely because duty was paid after issuance of a deficiency letter (and after the appointed day) is unsustainable where the assessee reported excess imports and paid duties voluntarily to regularise liabilities. Ratio vs. Obiter: Ratio - Rule 9(1)(b) cannot be invoked to deny credit/refund in absence of any adjudication or charge of fraud/suppression; a deficiency letter alone does not satisfy the preconditions for invoking that provision. Obiter - characterization of the deficiency letter as mere opportunity to regularize is explanatory but supports the ratio. Conclusions: Rule 9(1)(b) did not operate to deny the appellant's claim because there was no adjudication, show-cause notice or established allegation of fraud/willful suppression; the duty payments were voluntary regularisation following disclosure and intimation, hence credit/refund cannot be refused on that ground. Issue 3: Whether a deficiency letter amounts to initiation of adjudication/assessment proceedings Legal framework: Adjudication/assessment triggering restrictions on credit/refund requires formal initiation under relevant statutes and findings or proceedings on misrepresentation, suppression or contravention; mere administrative communications inviting regularisation are not equivalent. Precedent treatment: Authorities have distinguished deficiency/regularisation letters from show-cause notices or adjudicatory actions and held that deficiency letters do not initiate adjudication unless accompanied by or followed up with formal recovery/adjudication proceedings under statutory provisions. Interpretation and reasoning: The deficiency letter in the instant facts requested payment to regularise excess imports and did not invoke statutory provisions or constitute a demand notice under Customs or Central Excise Acts. The letter therefore served as an opportunity to rectify a bona fide default; absent any subsequent action under the Foreign Trade Development Rules or other adjudicatory steps, it cannot be treated as initiation of assessment or as an adjudication establishing culpability. Ratio vs. Obiter: Ratio - A deficiency letter requesting payment for regularisation does not equate to adjudication/assessment proceedings and cannot, by itself, justify invocation of restrictive provisions denying credit/refund. Obiter - observations on when a deficiency letter may transform into adjudication were contextual. Conclusions: The deficiency letter did not amount to initiation of adjudication or assessment proceedings; consequently, its issuance cannot be the sole basis for applying Rule 9(1)(b) to deny credit/refund. Issue 4: Remedy, remand and cash payment direction under Section 142(3) Legal framework: Section 142(3) contemplates disposal of claims in accordance with existing law and provides for cash payment of amounts eventually accruing after the appointed day; adjudicating authorities are to examine claims in light of the applicable pre-GST legal regime and relevant rules. Precedent treatment: Higher and co-ordinate authorities have directed that where a refund is found due under Section 142(3), it shall be paid in cash and cases remanded for fresh consideration where earlier orders incorrectly applied Rule 9 or denied refund without adjudicatory findings. Interpretation and reasoning: Given the Tribunal's findings that Rule 9(1)(b) does not apply and that Section 142(3) entitles the claimant to have the refund considered under existing law with cash payment where appropriate, the proper course is to set aside the impugned order and remit the matter to the first adjudicating authority for fresh consideration and decision consistent with these principles. A timeline for completion of the exercise ensures finality and compliance with statutory mandate for cash refunds where due. Ratio vs. Obiter: Ratio - The matter must be remanded for fresh adjudication consistent with the interpretation of Section 142(3) and non-applicability of Rule 9(1)(b) in the absence of adjudication; any refund found due is to be paid in cash. Obiter - directions as to precise calculation details are left to the adjudicating authority. Conclusions: The impugned orders rejecting refund are set aside; the matter is remitted to the adjudicating authority to decide the refund claim afresh in light of the findings that Section 142(3) applies and Rule 9(1)(b) is not attracted absent adjudication, and that any refund accruing should be paid in cash within a specified period.