2022 (10) TMI 1009

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....om July 2014 to September 2014 under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. 27/2012-C.E (N.T.) dated 18.06.2012. 2. After due process of law, the Original Authority vide Order-in-Original No. 103/2016(R) dated 11.08.2016 sanctioned the refund of Rs.3,34,714/- to the appellant. The refund of Rs.2,93,427/- was not sanctioned to the appellant, but however, it was held that the appellant could take re-credit of the same in view of paragraph 2(i) of Notification No. 27/2012. Aggrieved by the partial rejection of refund of Rs.2,93,427/- in cash, the appellant filed appeal before the Commissioner (Appeals), who vide order impugned herein upheld the order passed by the Original Authority. Hence, this appeal. 3.1 On....

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....s only the credit availed by the appellant in the normal course and not the re-credit that has been taken. He submitted that the credit availed and the re-credit taken has been artificially differentiated by rejecting the refund of the amount which was taken as re-credit. 3.3 It is pointed out by the Learned Counsel for the appellant that both the authorities below have allowed the appellant to take re-credit and have denied the cash refund. The order passed by the Adjudicating Authority allowing the appellant to take re-credit is dated 11.08.2016; the appellant had preferred an appeal before the Commissioner (Appeals) who upheld the view that the appellant ought to take re-credit and that therefore, the rejection of refund did not requi....

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.....S.T., the said direction to take re-credit has become impractical for the appellant. The Tribunal in the case of M/s. Veer-o Metals Pvt. Ltd. (supra) had considered a situation as to whether refund in cash can be allowed when credit cannot be availed by the assessee. The relevant paragraphs are noted as under:- "5.1 Learned Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that there is no dispute about the fact that the appellants are 100% EOU and holders of a valid letter of permission issued by the Development Commissioner. He further submitted that the conclusion arrived by the original auth....

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....or which the claims were filed. He further submitted that in the present case while claiming cash refund, the present appellants had already debited the entire Cenvat credit in respect of which the claims had been filed as required under the then Notification No. 27/2012-C.E., dated 18-6-2012 and the said fact is clearly recorded in each of the OIO passed by the Deputy Commissioner. He further submitted that the following amounts were lying in balance at the time the Goods and Services Tax regime came to be implemented w.e.f. 1-7-2017. Sl. No. Period Amount in dispute and subject matter of the present appeals 1 Jan., 2015 to March, 2015 Rs. 2,94,261/- 2 Apr., 2015 to June, 2015 Rs. 12,98,055/- 3 July, 2015 t....

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....r the appointed day under the existing law shall be disposed of in accordance with the provisions of existing law, and any amount of credit found to be admissible to the claimant shall be refunded to him in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of Section 11B of the Central Excise Act, 1944. Further I find that the appellant had already debited the entire amount in their Cenvat account and the said amount was debited under a bona fide belief that the cash refund would be sanctioned to them and the very fact that Cenvat credit was never disallowed, hence the Cenvat credit lying in the balance of Cenvat account are liable to be refunded in cas....