TaxTMI 
TaxTMI 
2021 (8) TMI 818
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....ated balance of unutilized credit of Education Cess (EC) and Secondary and Higher Education Cess (SHEC) available in the books. With the introduction of GST, these credits of cess were restricted to be transitioned into GST by virtue of Section 140(1) of the Act. Accordingly, the appellant did not carry forward accumulated credit of cess amounting to Rs. 36,53,362/- (Rupees Thirty Six Lakhs Fifty Three Thousand Three Hundred and Sixty Two only) in Tran-1. As these accumulated credit could not be utilized towards taxable supplies under existing law and also not transitioned into GST, appellant preferred a refund claim on 29/06/2018 under Section 11B of the Central Excise Act. Refund claim was filed within one year from the introduction of GST. The original authority as well as the appellate authority have rejected the refund application mainly on the ground that transfer of cess is restricted under Section 140(1) of the CGST Act, 2017. Hence, the present appeal. 2. Heard both the parties and perused the records. 3. Learned consultant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the provisions of t....
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....ng Co. Pvt. Ltd. reported in 2006 (201) E.L.T. 559 (kar.) has allowed the appeal of the assessee relating to refund of cesses under the existing law. Learned consultant further submitted that the findings in para 9 of the Order-in-Appeal that the claim was time-barred, the appellant submits that this issue goes beyond the scope of original show-cause notice as this issue was never raised at the time of show-cause notice and the original authority has also not given any findings on the issue of limitation and therefore the findings in the impugned order regarding time-bar is not sustainable in view of the following decisions: * CCE Vs. Suresh Synthetics - 2007 (216) E.L.T. 662 (S.C) * CCE Vs. Gas Authority of India - 2008 (232) E.L.T 7 (S.C) * CCE Vs. Toyo Engineering India Ltd. - 2006 (201) E.L.T. 513 (S.C) 3.1 He further submitted that even otherwise also the refund claim filed by the appellant is within one year from the introduction of GST and the same was held to be within time by the decision of the Chandigarh CESTAT in the case of Schlumberger Asia Services Ltd. Vs. Commissioner(Appeals). of C.E & S.T - 2021-TIOL-313- CESTAT-CHD. He further submitted that impugne....
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....2020 (41) G.S.T.L. 465 (Tri.-Hyd.) * M/s. Mylan Laboratories Ltd. Vs. Commissioner of Central Tax & Customs - 2020 (3) TMI 837 - CESTAT Hyderabad * Gauri Plasticulture Pvt. Ltd. - 2019 (6) TMI-820- Bombay High Court * Union of India Vs. Slovak India Trading Company * Banswara Syntex Ltd. Vs. The Commissioner, Central Excise & Service Tax - 2018 (10) TMI 1064 - Rajasthan High Court * Asst. Commissioner Vs. Sutherland Global Services Pvt. Ltd. - 2020 (10) TMI 804 - Madras High Court 5. In reply to the written submissions filed by the DR, the learned consultant submitted that the Revenue has relied upon the decision in the case of Bharat Heavy Electricals Ltd. and the decision of Mylan Laboratories Ltd. (cited supra) where refund of Education Cess and Secondary and Higher Education Cess was held not permissible on the basis of Bombay High Court decision in the case of Gauri Plasticulture Pvt. Ltd. (cited supra). To counter the submission of the learned DR, the learned consultant submitted that the CESTAT Delhi has allowed the refund of Education Cess and Secondary and Higher Education Cess that could not be transitioned in the GST and the said decision of CESTAT Delhi....
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....er Section 140(1), refund under Section 11B of the Central Excise Act, 1944 is permissible. 6. After considering the submissions of both the parties and perusal of the material on record as well as various judgments relied upon by both the parties cited supra, I find that in the present case the appellant has filed the refund claim of accumulated balance of unutilized credit of Education Cess and Secondary and Higher Education Cess available in their books under Section 11B of the Central Excise Act within a period of one year i.e. on 29/06/2018 from the introduction of GST law. I also find that with the introduction of GST there is a restriction for these cesses to be transitioned into GST by virtue of Section 140(1) of the Act and therefore the appellant did not transfer the said credit of cesses into GST and preferred to file the refund claim under Section 11B of the Central Excise Act. This issue was considered by the Division Bench of the CESTAT, New Delhi in the case of Bharat Heavy Electricals Ltd. cited supra and after considering the decision of the Apex Court as well as the High Court of Karnataka in the case of Slovak India Trading Co. Pvt. Ltd. has held that the ....
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.... refund of the cessess lying as cenvat credit balance as on 30/06/2017 in their accounts. The decision of the larger bench in the case of Steel Strips cited by the learned Departmental Representative could not be applicable in view of the contradictory decisions of High Courts on the same issue. 5. Accordingly we hold that impugned order-in-appeal is without any merit and thus we set aside the same. The appeal is accordingly allowed." 6.1 Further, I find that the Karnataka High Court in the case of Slovak India Trading Co. Pvt. Ltd. (cited supra) has held that when the assessee has moved out of Modvat Scheme/Cenvat Scheme, portion of unutilized credit should be allowed as refund. Since the issue is covered by the decision of the Slovak India Trading Co. Pvt. Ltd. (cited supra) and the same being the decision of a jurisdictional High Court would prevail over decision of other High Courts and the Tribunal as held in the case of CCE & ST Vs. Andhra Sugars Ltd. cited supra and the Larger Bench decision of the Tribunal, Bangalore in the case of J.K. Tyre & Industries Ltd. Vs. Asst. Commissioner of Central Excise wherein the Larger Bench has held that the Tribu....