TaxTMI 
TaxTMI 
2022 (2) TMI 1168
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.... on 13.07.2017. Being refund itself was allowed before the introduction of GST, provisions of Section 142(3) of the Central Goods and Service Tax Act, 2017, will be not applicable to the instant case of the appellant and appellant is not entitled for the cash refund as requested. Hence, I agree with adjudicating authority, as regards to sanction of Refund of Rs. 8,47,496/- by way of credit in their cenvat account. Held accordingly. 8.2 The appellant has also relied upon the case law of 2010 (259) ELT. 713(Tri-Del) CCE, Jalandhar V/s. Kochar Sung-Up Acrylic Ltd. The above judgement is not applicable in this case as the facts are different from the present case. I agree with the findings of the adjudicating authority. Held accordingly. 9. I observe that the appellant has contended in the appeal memo that in the instant case interest is admissible from the date of payment of duty. 9.1 [ have gone through the provisions of Section 11BB of the Central Excise Act, 1944 which states that the interest is chargeable when refund is not made within three months from the date of receipt of application. The adjudicating authority has therefore rightly held that the appellan....
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....mmissioner, appellants preferred the appeal before the Commissioner (Appeals) which was rejected by the impugned order and hence this appeal. 3.1 I have heard Shri V Ravindran, Advocate for the Appellant and Shri Sanjay Hasija, Superintendent, Authorized Representative for the revenue. 3.2 Arguing for the appellants learned counsel submits- • The denial of refund claim in cash to them by the impugned order is contrary to the provisions of Section 142 (3) and 142 (6) (a) of Central Goods and Service Tax, Act, 2017. • Section 2 (10) of the said Act defines the " 'Appointed day' to mean the date on which the provisions of this Act shall come into force." • In following decisions the issue has been adjudicated in the favour of appellants: • Toshiba Machine (Chennai) P Ltd [2019 (27) GSTL 216 (T-Chennai) • Veer O Metals Pvt Ltd [2021 (4) TMI 117 (CESTAT Bangalore) • Interest in the present case is admissible from the date of deposit • Soorajmull Baijnath Industries Pvt Ltd. [2021 (8) TMI 1131 (CESTAT Chandigarh)] • Ebiz Com Pvt Ltd [2016 (9) TMI 1274 (Allahabad....
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....he Assistant Commissioner, appellants availed the CENVAT Credit in their book of accounts on 24.05.2017, having taken the credit in their book of accounts the entire issue was settled and the position whereby appellants had paid certain amounts from their credit account as per the direction of the officers, restored back. 4.6 However appellant suo motto on 01.06.2017 reversed the credit taken in their book of accounts on 24.05.2017, without any directive or prompting by the jurisdictional authorities as they proposed filing of appeal against the order dated 05.05.2017. Along with the synopsis dated 28.10.2021 filed by the appellant and received in registry on 01.11.2021, appellants have filed a detailed date chart leading to the present appeal. The date chart is reproduced below: 4.7 From the date chart as filed by the Appellant it is observed that appeal was filed by the appellant on 11.07.2017. 4.8 Section 142 (3) and (6)(a) of the Central Goods and Service Tax Act, 2017 provided as follows: "(3) Every claim for refund filed by any person before , on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any oth....
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....he Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government hereby appoints the 22nd day of June, 2017, as the date on which the provisions of sections 1, 2, 3, 4, 5, 10, 22, 23, 24, 25, 26, 27, 28, 29, 30, 139, 146 and 164 of the said Act shall come into force. 4.10 Above make it clear that appointed date for the implementation of CGST Act, was notified as 22.06.2017. The appeal in the present case has been filed by the appellant before the Commissioner (Appeals) on 11.07.2017. Thus the finding of the Commissioner (Appeal) in para 8.1 and 8.2 of the impugned order cannot be faulted with. 4.11 In the synopsis dated 16.02.2022 filed by the Appellant, received in registry on 17.02.2022, Appellant counsel has specifically stated, "Without prejudice to the facts and circumstances that in the present case, the cash refund sought was made under section 11 B of CEA and not under Rule 5 of CCR {Specific facts and grounds for cash refund have been explained in the ground of appeal} in the grounds of appeal. In the following case laws it has been consistently held that EOU's are also entitled to cash refund under Rule 5 of CCR, 2004." I do not dispute t....
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.... the ethics (to be precise, the lack of it) of transferring the burden of tax liability to the shoulders of the guideless good citizens from those of the 'artful dodgers'. It may, indeed, be difficult for lesser mortals to attain the state of mind of Mr. Justice Holmes, who said, "Taxes are what we pay for civilized society. I like to pay taxes. With them I buy civilization." But, surely, it is high time for the judiciary in India too to part its ways from the principle of Westminister and the alluring logic of tax avoidance. We now live In a welfare state whose financial needs, if backed by the law, have to be respected and met. We must recognize that there is behind taxation laws as much moral sanction as behind any other welfare legislation and it is a pretence to say that avoidance of taxation is not unethical and that It stands on no less moral plane than honest payment of taxation. In our view, the proper way to construe a taking statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally, or liberally, nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a ....
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....T.R. 603.) After quoting a passage from the judgment of the Privy Council in the case of Bank of Chettinad Ltd. v. Commissioner of Income tax ([1940] 8 I.T.R. 522.) this Court stated: "The taxing authority is entitled and is indeed bound to determine the true legal relation resulting from a trans action. If the parties have chosen to conceal by a device the legal relation, it open to the taxing authorities to unravel the device and to determine the true character of the relationship But the legal effect of a transaction cannot be displaced by probing into the substance of the transaction. In Jiyajeerao Cotton Mills Ltd. v. Commissioner of Income tax and Excise Profits Tax Bombay ([1958] 34 I.T.R. 888.) this Court observed: "Every person is entitled so to arrange his affairs as to avoid taxation but the arrangement must be real and genuine and not a sham or make-believe,..." The Gujarat High Court in the case of Commissioner of Income tax v. Sakarlal Balabhai ([1968] 69 I.T.R. 186) said: "Tax avoidance postulates that the assessee is in receipt of amount which is really and in truth his income liable to tax but on which he avoids payment of tax by some artifice or dev....
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....belief that it is honourable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges. On this aspect one of us, Chinnappa Reddy, J. has proposed separate and detailed opinion with which we agree." 4.12 In my view the appeal filed by the appellant before the Commissioner (Appeal) is nothing but a colorable device created by the appellant to claim the benefit which was not due. All could have been avoided and appellant could have carried forward the Cenvat Credit availed by them in their book of accounts on 24.05.2017 as per the order dated 05.05.2017 to the GST regime. But it is also settled principle in law that nobody should be allowed the benefit of his own wrongs. Reference is made to the observations of Hon'ble Apex Court in the case of Devendra Kumar [(2013) 9 SCC 363] "23. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. "Subla Fundamento cedit opus"- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any....