TaxTMI 
TaxTMI 
2021 (7) TMI 326
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....k and registered under the category of "Banking and other Financial Services" under Service Tax. Appellant filed the original service tax returns on 31/08/2017 for the period from April 2017 to June 2017 wherein the entire cenvat credit of service tax aggregating to Rs. 47,55,279/- (Rupees Forty Seven Lakhs Fifty Five Thousand Two Hundred and Seventy Nine only) and Krishi Kalyan Cess aggregating to Rs. 1,69,832/- (Rupees One Lakh Sixty Nine Thousand Eight Hundred and Thirty Two only) was utilized thereby resulting in 'Nil' closing balance of cenvat credit as on 30/06/2017 in the original Form ST-3. Appellant filed transitional returns in Form GST Tran-1 on 31/08/2017 with 'Nil' value since there was no carry forward unutilized cenvat credit....
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....hereby resulting in the downward revision of the claim of refund aggregating to Rs. 15,74,893/- (Rupees Fifteen Lakhs Seventy Four Thousand Eight Hundred and Ninety Three only). The original authority after following the due process, rejected the refund on the ground that the same has been filed beyond the time limit of one year from the relevant date i.e from the date of invoice and the claimant has failed to utilize the opportunity of claiming cenvat credit in Form GST Tran-1 and has not furnished the original invoices evidencing payment of taxes to the extent of refund claimed. The original authority also held that the refund claim is in contravention of provisions of Section 11B of the Central Excise Act. Aggrieved by the said order, ap....
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....d the said judgment relied upon by the appellant. He further submitted that the case of the appellant is covered by Section 142(9) (b) of CGST which shall prevail over Rule 117 and 120A of CGST Rules, 2017. He further submitted that Section 142(9)(b) of CGST Act, 2017 allows the refund of cenvat credit under existing law to the registered person in the scenario where the carry forwared unutilized balance of cenvat credit has increased on account of filing of the revised returns under Service Tax filed during the GST regime. Learned consultant also referred to para 14 of the impugned order passed by the original authority and upheld by the learned Commissioner where they have relied on Rule 117 of CGST 2017 and rejected the refund. Learned c....
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....he second appellate authority to justify loading of value. 4. On the other hand the learned AR defended the impugned order. 5. After considering the submissions of both the parties and perusal of the material on record, I find that initially the appellant filed the ST-3 returns on 31/08/2017 for the period from April 2017 to June 2017 and utilized the entire cenvat credit and the closing balance was 'nil' and in the transitional return in form GST Tran-1, he filed the 'nil' value and did not carry forward any unutilized balance of cenvat credit. Subsequently, he realized that he did not avail the cenvat credit and KKC totally amounting to Rs. 16,50,384/- (Rupees Sixteen Lakhs Fifty Thousand Three Hundred and Eighty Four only) and filed a ....
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.... revision under the existing law and if, pursuant to such revision, any amount is found to be refundable or Cenvat credit is found to be admissible to any taxable person, the same shall be refunded to him in cash under the existing law, notwithstanding anything to the contrary contained in the said law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944) and the amount rejected, if any, shall not be admissible as input tax credit under this Act." 5.1. Further I find that it is a settled legal position that if there is a conflict between the substantive provision of the statute and the Rules framed thereunder then it is the statute which will have a overriding effect and in the present case....
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.... revised return late is not valid because this ground has not been raised either in the show-cause notice or in the Order-in-Original and hence the Commissioner (Appeals) is not justified to invoke a new ground to reject the refund claim. Further, I find that it is a settled law that whenever two options are available, the assessee may choose the option which is more beneficial for them and in the present case the assessee/appellant has chosen to file the refund claim under Section 142(9)(b) of CGST Act, 2017 which has a overriding effect over Section 11B of Central Excise Act, 1994. The appellant did not choose to carry forward the credit in Tran-1 and preferred to claim cash refund as provided under Section 142(9) (b) of CGST Act, 2017. F....