TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 548
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....eable to central excise duty. That the company was paying excise duty on such goods and it had discharged the liability of service tax on taxable services. The Cenvat credit of duties paid on inputs and capital goods and that of the service tax paid on input services were also availed and utilised by the petitioner. 1.1 A notification in the month of March, 2016 of the Central Government provided Cenvat credit of Krishi Kalyan Cess ('KKC' for short) which was imposed under Section 161 of the Finance Act which could be utilised only for paying KKC on service tax payable by an assessee on the taxable services provided by him. The unutilised Cenvat credit of KKC aggregating Rs.43,61,383/ (Rupees Forty Three Lakh Sixty One Thousand Three Hundred Eighty Three Only) was recorded in the Cenvat register and the returns. 1.2 It emerges that the Central Government discontinued levies of central excise duty and service tax and provisions of the Goods and Services Tax (GST) have been brought into the operation. In wake of these changes the levy of KKC has been deleted and accordingly, the petitioner was not liable to pay KKC on taxable services; however, a refund was needed of Ce....
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....has relied upon the various decisions to urge that this shortcut on the part of the CESTAT is impermissible under the law, which ought to have considered the matter on the merits. If at all it was not agreeable, it could have decided in accordance with law, but, remanding the matter to the original authority, is not contemplated under the law. Moreover, he has pointed out as to how the case of the petitioner is different with the detailed factual matrix and the same cannot have the applicability of the decision of the Bomaby High Court rendered in case of Commissioner of Central Excise vs. Bombay Dyeing and Manufacturing Company Ltd. 6. Let Notice be issued, returnable on 02.02.2021." 3. Affidavit-in-reply is filed on behalf of the respondent Nos.1 to 3 challenging the claim of refund on merit in detail. However, on the issue of the Tribunal not deciding, it is contended that this order is passed by the Tribunal after hearing both the sides and if, the Tribunal has remanded the matter back to the Adjudicating Authority for passing de novo order, it is just and proper order. In short, it has defended the action of the authority concerned of not granting the refund of the KKC an....
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....y Dyeing and Manufacturing Company Limited (supra) before the Apex Court. It is a Larger Bench's judgment of the Bombay High Court challenged before the Apex Court in Special Leave Petition No.007390 of 2020 on 09.06.2020. We are given to understand that the same is still pending before the Apex Court and has not been finally decided. If the matter is still pending before the Apex Court, nobody can make a guess as to in what way it is going to result. The least the Tribunal could have done was of deciding the matter on merit as per the prevalent law or to keep the matter back. However, it has chosen to remand the matter to the adjudicating authority which is impermissible. 7. This Court in case of Commissioner of Central GST vs. Jay Chemical Industries Ltd., reported in 2018 (19) GSTL 459(Guj.) the question which was pending before the Tribunal was at large before the High Court. The Court held that in such a situation, the appeal ought to have been kept pending till the decision of the High Court with a liberty to both the sides to approach the Tribunal after the decision of the High Court. The approach of the Tribunal is held to have harassed both the Assessee and the Department....
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....and for the reasons stated hereinabove, all these appeals succeed. The impugned common order passed by the learned Tribunal is hereby quashed and set aside and the appeals are restored to the file of the learned Tribunal and to avoid any further multiplicity of proceedings /appeals before this Court, it is directed that the appeals on remand be kept pending till the decision of this Court in the case of Essar Steel India Ltd., being Tax Appeal No.444 of 2016. 9. The appeals are partly allowed to the aforesaid extent." 7. In Tax Appeal No.1043 of 2018 decided in case of Commissioner, Central GST and Central Excise Vadodara-II vs. M/s.Meghmani Finchem Ltd., this very issue was decided by this Court by strongly disapproving this approach on the part of the Tribunal. One particular appeal was pending before this Court and the large number of appeals came up for consideration before the Tribunal on the very issue, the Department had placed heavy reliance on the judgment of the High Court and the Assessee relied on the amendment to the definition of the "input credit service" and argued that in all pending cases irrespective of the date of amendment, the same would apply. The Tribun....