TaxTMI 
TaxTMI 
2023 (4) TMI 6
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....filed the refund application date 27.06.2020 for the aforesaid amount of Rs.18,20,555/- (the amount of Cess). The said refund claim was proposed to be rejected vide Show Cause Notice No.18/03/2020 dated 03.08.2020 on the ground that there is no provision in Cenvat Credit Rules, 2004 (CCR 2004) nor under the provisions of Section 11B of Central Excise Act, 1944 (CEA 1944) mandating cash refund of the Cess in respect of which the balance in Cenvat Credit could not be utilized. The said proposal was initially confirmed vide Order-in-Original No.02/2020-21 dated 07.09.2020 on the grounds that there is no provision for refund of Cenvat Credit except under Rule 5 of CCR 2004 nor the present case is covered under section 142 (9) of CGST Act, 2017 and that the refund claim was held to be barred by time. The appeal thereof has been rejected by Commissioner (Appeals) vide Orderin- Appeal No.020-21-22 dated 15.12.2021 being aggrieved the appellant is before this Tribunal. 2. I have heard Mr. Siva Rajan, ld. Counsel for the appellant and Mr. V.R. Pavan Kumar, ld. Authorised Representative for the Revenue. 3. Ld. Counsel for the appellant has mentioned that amount in question is the amoun....
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....a in Commissioner of Customs Appeal No. 15 of 2009 dated 10.02.2009. The main contention of the learned Counsel of the appellant is that Rule 5 of CCR, 2004 allows refund in cases where for any reason adjustment of accumulated credit is not possible against duty on final products cleared for home consumption. The closure of their factory is well covered by the phrase "for any reason". The Counsel stressed that the above judgments of the Tribunal and High Courts have allowed refund of unutilized CENVAT Credit in similar cases. In the case of Slovak India Co. Pvt. Ltd. (supra), the decision of the Karnataka High Court was even affirmed by the Hon'ble Apex Court and the department's SLP was dismissed and, therefore, the sub-ordinate courts have to interpret the law as is held by the Hon'ble Apex Court. The appellants have also stated that the purchaser of their factory i.e. M/s. New Age Fire Protection Industries Pvt. Ltd. issued a letter stating that all benefits, entitlements and liabilities arising prior to 28.12.2010 shall be solely to the account of appellants only. 4. It is finally submitted that the cash refund of Cenvat credit is allowable despite absence of ....
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....is commonly employed to connote a tax with a purpose or a tax allocated to a particular thing suggested by the name of the cess. In the present case, it is related to education. Cess is generally for such levy which is for some special administrative expense as shall be suggested by the name of the cess. Education cess was levied by virtue of Finance Act No. 2 of 2004 in Section 92 to 94 thereof to be charged as a duty of excise with an objective to fulfill commitment of the government to provide a finance universalized quality basic education. Section 93 thereof reads as follows: 93. Education Cess on Excisable Goods (1) The Education Cess levied under Section 81, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Education Cess on excisable goods), at the rate of two per cent, calculated on the aggregate of all duties of excise (including special duty of 43 excise or any other duty of excise but excluding Education Cess on excisable goods) which are levied and collected by the Central Government in the Ministry....
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....ducation Cess on excisable goods) which are levied and collected by the Central Government in the Ministry of Finance 44 (Department of Revenue), under the provisions of the Central Excise Act, 1944 or under any other law for the time being in force. (2) The Secondary and Higher Education Cess on excisable goods shall be in addition to any other duties of excise chargeable on such goods, under the Central Excise Act, 1944 or any other law for the time being in force and the Education Cess chargeable under section 93 of the Finance (No. 2) Act, 1944. (3) The provisions of the Central Excise Act, 1944 and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Secondary and Higher Education Cess on excisable goods as they apply in relation to the levy and collection of the duties of excise on such goods under the Central Excise Act, 1944 or the rules made thereunder, as the case may be." Thus, no doubt the Cess are the part of the excise duty. I observe that the levy of EC and SHEC was however dropped and deleted by the Finan....
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....department, the appellant reversed the same, however, claimed the refund thereof. It is observed that education cess and secondary and higher education cess are to be taken and utilized for the purpose of payment, respectively, of the said cesses, only. Since Education Cesses are not levied under the GST Act, the same is not meant to be transitioned to the electronic credit register in the GSTN. 13. Further, I observe that the definition of 'eligible duties and taxes' as per the explanation 3 under Section 140 of the CGST Act, 2017 was amended with retrospective effect from 01.07.2017 whereby it is specified that cesses are excluded from the definition of 'eligible duties and taxes', Thus, the credit is ab initio not available for utilization for GST. In view of the above, cesses are not be transitioned through TRAN-1, as per the transitional provisions specified under CGST Act, the credit balances not transitioned to GST regime shall lapse, and, as such, the argument of the appellant the impugned credits never lapse, as there is no provision retaining the same is not sustainable. The appellant cannot circumvent the said legal provision through the route of 142 (....
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....nterest, if any paid on such duty to any other person; (f) the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. A bare perusal of this provision denotes that instead of crediting the amount of refund to the fund, it can be paid to the applicant seeking refund, if such amount is relatable, inter alia to refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made or any notification issued under this Act The word refund is defined in the Explanation and it says that it includes rebate of duty of excise on excisable goods. Thus this section also do not talk about refund of cess after the cess stands omitted. 14. In addition to Section 11B, the only other provision for refunds in existing laws had been Rule 5 of CCR, 2004. To my u....
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....can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed, it cannot import provisions in the statutes so as to supply any assumed deficiency." 16. This Tribunal also in the case of Steel Strips Ltd. Vs. Commissioner of Central Excise, Ludhiana reported as 2011 (269) E.L.T. 257 (Tri.) has held that no equity or good conscience influence fiscal codes without the same being embodied to statutory provisions. The Larger Bench of this Tribunal also held that the plea of injustice or hardship cannot be raised to claim a refund in the absence of statutory mandate. This decision was dealt with by Hon'ble High Court of Mumbai in the case of Gauri Plasticulture Pvt Ltd. (supra) wherein it was held that Rule 5 of CCR, 2004 is related to manufacture in the sense that where any input or input service is used in the manufacture of final product which is cleared for export or used in intermediate product cleared for export or used for providing output service which is exported, the....
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....But in the present case the Cenvat of Cess paid prior March, 2015 was never taken till the onset of CGST Act on 01.07.2017. 18. Coming to the transitional provisions of CGST Act, 2017 much emphasized by the appellant, I observe that transitional arrangement for input tax credit is given under Section 140 of CGST Act. This section comprises of 10 sub-sections and explanations 1, 2 and 3 thereafter. 19. The Explanation 1 refers to Sub- sections (1), (3), (4) and (6), because these four Sub-sections use and employ the term "Eligible Duties" and Explanation 1 confines "Eligible Duties" to 7 specified duties under that Explanation 1, namely Additional Excise Duty under Additional Duties of Excise (Goods of Special Importance) Act, 1957, Additional Duty under Custom and Tariff Act, 1975, Additional Custom Duty on Taxable Articles, Duty of Excise in the First Schedule to the Central Excise Tariff Act, 1985 and National Calamity Contingency Duty under Section 136 of the Finance Act, 2001, etc. Therefore, only the seven specified duties in respect of inputs held in stock and inputs contained in semi finished or finished goods held in stock on the appointed date ie. 01.07.2017 are held....
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....been specified in Explanations 1 and 2. But, as noted above, the imposition or levy of Education Cess and Secondary and Higher Education Cess and Krishi Kalyan Cess did not operate after 01.07.2017. Explanation 3, in our opinion, specifying that any kind of Cess will be excluded for the purpose of Section 140, makes the intention of the Legislature very clear and Sub-section (8) of Section 140, which was emphasized by the learned counsel for the appellant, is not excluded from the effect and operation of Explanation 3 of Section 140 of GST, Education Cess and Secondary and Higher Education Cess and Krishi Kalyan Cess are not included in Explanations 1 and 2 at all. The Departmental Circular dated 02.01.2019 with respect to clarifications regarding Section 140(1) of CGST Act, 2017, has rightly clarified this position with reference to Explanation 3 to Section 140 of the Act. 23. The above discussion is sufficient to hold that transitioning in the Electronic Credit Ledger, the amount of such Education Cess and Secondary and Higher Education Cess, does not entitle appellant/assess to utilize the said unutilised amount of Education Cess and Secondary and Higher Education Cess agains....