TaxTMI 
TaxTMI 
2021 (5) TMI 954
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.... the case are that the appellant is providing various services. The cenvet credit of various duties and services paid by them and Education Cess, Secondary & Higher Education Cess, Krishi Kalyan Cess were lying unutilized in their cenvet credit account and the appellant could not utilize the same till 30.06.2017. On 01.07.2017, the GST Regime came in force and the credit lying in the account was allowed to be transferred under GST Regime. The appellant took the cenvat credit lying unutilized in their cenvat credit account of services, goods, Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess to their GST account. Later on, an amendment came on 30.08.2018 in Section 140 of the CGST Act, 2017 that the assessee cannot car....
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....nd Krishi Kalyan Cess under GST Regime on 01.07.2017, therefore, it has become GST credit and if any refund is required to be filed by them, it is to be filed under CGST Act, 2017 in terms of the amendment to Section 140 of the CGST Act, 2017. He also submits that as the cenvat credit lying unutilized on 01.07.2017 and they were required to file the refund, if any, within the one year from the said date, but the same has not been filed within the one year. In that circumstance also, the refund claim has become time barred. He also submits that the facts in the case of M/s Bharat Heavy Electricals Ltd (supra) are not relevant to the facts of this case; therefore, decision in the case of M/s Bharat Heavy Electricals Ltd (supra) is not applica....
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....cation Cess and Krishi Kalyan Cess lying unutilized as on 01.07.2017 in their cenvat credit account. Therefore, the contention of the ld. AR that it is a GST credit, is not acceptable when the provision of law is very much clear that the said credit cannot be transferred to GST Regime. 7. Now the question arises whether the refund claim filed by the appellant is barred by limitation or not? 7.1 The amendment to Section 140 came after one year of the switching to the GST Regime on 30.08.2018 which is applicable retrospectively. In that circumstances how the appellant could have filed the refund claim within one year from 01.07.2017 till 30.08.2018, when there was no provision of law existed, when amendment itself takes on 30.08.2018, there....
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....that the credits earned were a vested right in terms of the Hon'ble Apex Court judgement in Eicher Motors case and will not extinguish with the change of law unless there was a specific provision which would debar such refund. It is also not rebutted by the revenue that the appellants had earned these credits and could not utilize the same due to substantial physical or deemed exports where no Central Excise duty was payable and under the existing provisions, had the appellants chosen to do so they could have availed refunds/ rebates under the existing provisions. There is no provision in the newly enacted law that such credits would lapse. Thus merely by change of legislation suddenly the appellants could not be put in a position to lose t....