TaxTMI 
TaxTMI 
2021 (8) TMI 813
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....ent case are that the appellants are engaged in the manufacture of excisable goods viz. HDPE/PP woven fabrics falling under Tariff heading No.39269080 of CETA 1985, HDPE/PP Woven sacks under Tariff Heading 60069000 and AGRI under Tariff heading 39232990. They are also registered with the Service Tax for payment of service tax on GTA, Business Auxiliary Service and Business Support Service. During the course of audit on the records of the appellant for the period from July 2014 to June 2015, the Department observed that the appellant has irregularly transitioned the cenvat credit of education cess and secondary and higher education cess to GST which was not permitted under the law. As per the Department, perusal of ER1 return for June 2017, ....
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....sustainable in law as the same has been passed without appreciating the facts and the law. He further submitted that impugned order has been passed only relying upon the Board circular dt. 02.01.2019 and the said circular is in violation of the decision of the Apex Court in Orient Paper Mills ltd. Vs UOI [1978(2) ELT J345 (SC)]. He further submitted that the adjudicating authority has not appreciated the provisions of Finance Act, 2004 and 2007 which levies of education cess and secondary higher education cess. He also submitted that both the authorities have wrongly calculated the amount of Rs. 1,41,658/- whereas the appellant has submitted evidence that out of this amount, Rs. 10,403/- relates to cenvat credit carried forward from the PLA....
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....passed by the authorities below. 6. After considering the submissions of both the parties and perusal of the material on record, I find 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. cited supra, wherein the Hon'ble Division while setting aside the decision of the Single Judge has held in paras 60, 61 and 62 as under:- 60. Obviously, the transition of unutilised Input Tax Credit could be allowed only in respect of taxes and duties which were subsumed in the new GST Law. Admittedly, the three types of Cess involved before us....
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.... for the purpose of Section 140 of the Act, which is not specified therein, the transition, carry forward or adjustment of unutilised Cess of any kind other than specified Cess, viz. National Calamity Contingent Duty (NCCD), against Output GST liability could not arise. 62. For the aforesaid reasons, we are inclined to allow the appeal of the Revenue and with all due respect for the learned Single Judge, set aside the judgment of the learned Single Judge dated 05.09.2019 and we hold that the Assessee was not entitled to carry forward and set off of unutilised Education Cess, Secondary and Higher Education Cess and Krishi Kalyan Cess against the GST Output Liability with reference to Section 140 of the CGST Act, 2017. The appeal of t....