2022 (6) TMI 1040

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....nt of duty. The appellants did not meet the export obligation and consequently a deficiency letter dated 15.03.2019 was issued to them directing them to regularize excess import of inputs made by them. Thereafter, a demand notice was issued by the office of the Commissioner of Customs, Chennai-IV for non-fulfilment of export obligation under the advance authorizations issued to them. The appellant then paid Customs duties along with CVD and Special Additional Duty (SAD) with applicable interest vide T.R. Challan dated 04.04.2019. 2. Meanwhile, G.S.T was introduced with effect from 01.07.2017 and the appellants were unable to avail input credit of CVD and SAD paid by them. They were also not able to transfer such credit to GST regime to TRA....

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....s under : "RULE 9. Documents and accounts. __ (1) The CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely :- (a) an invoice issued by - (i) [a manufacturer or a service provider for clearance of-] (I) inputs or capital goods from his factory or depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer; (II) inputs or capital goods as such; (ii) an importer; (iii) an importer from his depot or from the premises of the consignment agent of the said importer if the said depot or th....

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....s been availed by reason of fraud, collusion, any wilful misstatement or suppression of facts with intent to evade payment of duty. In the present case, there is no such finding rendered against the appellant. The department has proceeded to deny refund only on the ground that a demand notice has been issued to the appellant. He adverted to page 140 of the Appeal No.40304/ 2021 to argue that notice issued to appellant on 29.06.2016 is merely an intimation letter to pay the duty and is not a demand or recovery notice issued under Section 142 of the Customs Act, 1962. Further, in such notice, there is no allegation of any fraud or wilful misstatement. He submitted that credit can be denied only if there is a finding of fraud, collusion or wil....

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....und shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act." 8. To support his argument, Ld. Consultant relied upon the following decisions and prayed that the appeal may be allowed : 1. Ganges International Pvt. Ltd. Asst Comm. of GST and CE, Puducherry 2022-TIOL-325-HC-MAD-GST 2. CESTAT Final Order No.42467/2021 dated 16.12.2021 in the case of M/s.Circor Flow Technologies India Private Ltd. 3. CESTAT Final Order No.42366/2021 dated 11.10.2021 in the case of M/s.Terex India Ltd. 4. CESTAT Final Order No.50157-50159/2022 dated 03.02.2022 in the case of M/s.Mithila Drugs Pvt. Ltd. 9. Ld. A.R Shri Arul C. Durairaj appeared for the Departmen....

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....i, wherein also pursuant to demand of service tax under reverse charge mechanism after 30.06.2017, for transaction related prior to the said date (01.07.17), this Tribunal held that as the appellant was entitled to cenvat credit under Cenvat Credit Rules, which is not now available due to GST regime, is entitled to refund under Section 142 read with Rule 146 of the CGST Act. 6. Learned Authorised Representative Sh. Mahesh Bhardwaj appearing for the Revenue relies on the impugned order. 7. Having considered the rival contentions, I find that the payment of CVD and SAD subsequently during GST regime, for the imports made prior to 30.06.2017 is not disputed under the advance authorisation scheme. It is also not disputed that the appellant ....