TaxTMI 
TaxTMI 
2022 (2) TMI 246
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....ving balance of eligible Cenvat credit of Rs. 13,18,02,879/- (in respect of Central Excise Registration No. AAACH7354KEM070) and Rs. 3,65,83,241/- (in respect of Central Excise Registration No. AAACH7354KXM003) in its ER-1 returns for June 2017. 4. Out of the aforesaid amounts, Appellant had transitioned the amount of Rs. 13,05,81,973/- and Rs. 3,49,84,516/- respectively, to GST regime by filing Form GST-TRAN-1 (TRAN-1) in terms of Section 140(1) of the Central Goods and Services Tax Act, 2017 (CGST Act), representing the Cenvat credit of Central Excise duty and Service tax paid on inputs, input services and capital goods. As regards the balance amount of Rs. 12,20,906/- and Rs. 15,85,225/- respectively, representing the Cenvat credit of Education Cess and Secondary and Higher Education Cess (collectively, Cess amounts), Appellant had not transitioned the same in GST in view of Guidance Note dated 14.03.2018 issued by Board and amendment made to Section 140 vide Central Goods and Services Tax (Amendment) Act, 2018 (CGST Amendment Act) retrospectively w.e.f. 01.07.2017. 5. Accordingly, Appellant had filed two refund applications on 29.06.2020 for refund of unutilised Cenvat credit....
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....42(3) of the CGST Act. * There is no provision either in the Credit Rules or in Section 11B, which provides for refund of Cess amounts. The refund of Cenvat credit arises only in respect of goods exported as per rule 5 of the Credit Rules. Thus, Section 142(3) is not meant to cover refund of Cenvat credit, which is not eligible for transition in GST via TRAN-1. * Section 142(3) is meant to cover those scenario where an assessee pays duty through Cenvat credit account, and subsequently, appellate authority decide the case in assesee's favour. Thus, such credit cannot be transitioned in GST since Central Excise duty and Service tax are no longer used in GST. * The judgments and decisions relied upon by the Appellant, are not applicable in the present case. * Since the Appellant has filed refund application under Section 11B of the Excise Act, the limitation of one year is applicable. * Reliance is placed on the decision of Hon'ble Tribunal in the case of Mylan Laboratories Ltd. v. Commissioner of Central Tax & Customs, 2020 (3) TMI 837-CESTAT Hyderabad. 9. On appeal to Commissioner (Appeals) by the Appellant, the Ld. Commissioner (Appeals) Jodhpur vide common Order-in-Appe....
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....to levy and collection of duty or tax on goods or services or both, passed or made before the commencement of this Act by Parliament or any Authority or person having the power to make such law, notification, order, rule or regulation". Thus, in respect of the Appellant's refund claim in the present case, existing law means the Excise Act and the rules made and the notifications issued, thereunder. 11.4 In the present case, it is submitted that the Appellant has filed the refund of unutilised Cenvat credit of Cess amounts under Section 142(3), as such amounts have not been transitioned in GST. There is no dispute in this regard, in the present case. In fact, the Ld. Assistant Commissioner in Para 14 of the OIOs, has categorically stated that the Appellant has not transitioned the Cess amounts, claimed as refund, to GST. It is further submitted that Section 142(3) clearly provides for refund of Cenvat credit or any other amount paid under the existing law, claim of which shall be disposed off in accordance with the provisions of existing law. The Cess amounts have been paid by the Appellant and availed Cenvat credit thereof, in accordance with the provisions of the Excise Act and t....
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.... consequential relief. It is also urged that the refund application are not time barred as there is no application of Section 11(B) of the Central Excise Act, as these refunds arise due to transitional provisions under the CGST Act r/w the Rules thereunder. 13. The learned Authorised Representative for Revenue relies on the impugned order. He further relies on the Ruling of Hon'ble Madras High Court in the case of Southernland Global Services Pvt Ltd. 2020-TIOL-1739-HC-MAD. 14. Having considered rival contentions, I find that the Division Bench of this Tribunal in the case of Bharat Heavy Electricals Ltd (supra) under similar facts and circumstances have held as follows: "4. We have carefully gone through the rival arguments. There is no dispute that on 01/07/2017, the cesses Appellants could not carry over the same under the GST regime. Thus the appellants were in a position where they could not utilize the same. We agree with learned Counsel of the appellant 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 re....