TaxTMI 
TaxTMI 
2024 (1) TMI 927
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....t, the same may be granted as cash refund under Sec.142(3) of CGST Act, 2017. After due process, the Lower Authorities dismissed the refund claim. Being aggrieved, the Appellant is before the Tribunal. 2. The issue, as to whether any Appeals on account of such rejection of refund claims which were being filed on account of eligible Cenvat Credit had reached the Larger Bench. The Larger Bench had to decide as to whether the jurisdiction for such Appeals lies before the CESTAT or before the Tribunal to be constituted under the CGST Act 2017.Vide their Interim Order No. 40021/2023 dated 21.12.2023, the Larger Bench, in the case of Bosch Electrical Drive India Pvt Ltd, has gone through the submissions from both sides and has come to the following conclusion: "41. Before examining whether an appeal would lie to the Tribunal against an order passed under section 142 of the CGST Act, it would be appropriate to examine whether an appeal would lie to the Appellate Tribunal constituted under the CGST Act. 42. Under section 112 of the CGST Act, an appeal would lie before the Appellate Tribunal constituted under the CGST Act against an order passed under section 107 or sec....
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....efore, no manner of doubt that an appeal against an order passed under section 142 of the CGST Act would lie to the Tribunal. 47. This view also gains support from the fact the legislative intent could not have been to deprive either an assessee or the Revenue from the right of an appeal since an appeal against an order passed under section 142 of the CGST Act would not lie to the Appellate Tribunal constituted under the CGST Act." [Emphasis supplied] 3. In view of this decision, I take up the Appeal for disposal. 4. Learned Advocate appearing on behalf of the Appellant submits that the issue is no more res integra. The very issue as to whether CVD+SAD paid subsequent to 2017 are eligible for cash refund under Sec.142(3) of the CGST Act 2017, has been decided in favour of the importer/Assessees in the following cases: a) Mithila Drugs Pvt Ltd vs CGST, Udaipur [2022 (3) TMI 58 - CESTAT New Delhi] b) Clariant Chemicals India Ltd vs CCE & ST, Raigad [2022 (10) TMI 796 - CESTAT Mumbai] c) ITCO Industries Ltd vs CGST & CE, Salem [2022 (6) TMI 1040 - CESTAT Chennai] d) Flexi Caps & Polymers Pvt Ltd vs CGST & CE, Indore [2021 (9)....
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....le regime of Central Excise prior to 30.06.2017. Accordingly, I hold that the appellant is entitled to refund under the provisions of Section 142(3) and (6) of the CGST Act. 8. Accordingly, I direct the jurisdictional Assistant Commissioner to grant refunds to the appellant of the amount of SAD & CVD as reflected in the show causes notices and also in the orders-in-appeal. Such refund shall be granted within a period of 45 days from the date of receipt of order along with interest under Section11BB of the Central Excise Act. The impugned orders are set aside." [Emphasis supplied] 11. In the case of Clariant Chemicals India Ltd vs CCE & ST, Raigad [2022 (10) TMI 796 - CESTAT Mumbai], the Mumbai Bench has held as under: 8. Upon hearing the Counsels from both sides and after perusal of the case record, it is apparent that Appellant's eligibility to take credit of the duties paid as CENVAT Credit is undisputable and only because of procedural aberration occurred during transition to GST period, Appellant could not take the credits in its electronic ledger in the GST regime, for which it sought for refund such a contingency is perhaps foreseen by the legisl....
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.... has paid the duties only after issuing a demand notice. Onperusal of the alleged demand notice, it is merely in the nature of an intimation letter and has not been issuedinvoking any provisions of Customs law or Excise law. Further, in such intimation also, there is no allegationof any fraud, collusion or suppression of facts with intent to evade payment of duty. There is no evidenceplaced before me to establish that the duties were paid after adjudication and rendering a finding of fraud,collusion or suppression of fact with intent to evade payment of duty. In such circumstances, the credit cannotbe denied. I hold that the appellant is eligible for credit of CVD and SAD paid by them. The Tribunal in thecase of Circor Flow Technologies (supra) and Mithila Drugs Pvt. Ltd. (supra) had analysed a similar issue. InM/s.Mithila Drugs Pvt. Ltd., the facts are identical to that of the instant case. The relevant paragraphs read as under: "5.1 Learned Counsel further relies on the precedent ruling of this Tribunal in Flexi Caps and Polymers Pvt. Ltd., vs. Commissioner, CGST & Central Excise, Indore -2021 (9) TMI 917-CESTAT, New Delhi, wherein also pursuant to demand of service tax ....
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....taken over by New GST Act, 2017. Perusal thereof shows that the Act contains a provision to take care of such unutilized credits of the assessee to be refunded to them in cash. The relevant provision is Section 142 of GST Act, with sub-section (3) thereof reads 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 other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid 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:" and sub-section (8) (a) and (b) reads as follows:- "(8) (a) where in pursuance of an assessment or adjudication proceedings instituted, whether before, on or after the appointed day, under the existing law, any amount of tax, interest, fine or penalty becomes recoverable from the person, the same shall, unless recovered under the existing law, be recovered as an arrear of tax un....
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....s and circumstances, I hold that no unjust enrichment is attracted as the appellant have admittedly paid service tax in August, 2018 out of their own pocket. Accordingly, I allow this appeal and set aside the impugned order. The adjudicating authority is directed to grant refund within a period of 60 days from the date of receipt of copy of this order along with interest under section 11BB of the Central Excise Act." [Emphasis supplied] 16. I find that the ratio laid down in the above case law is also squarely applicable to the facts of the present case. 17. Now coming to the case law of Servo Packaging Ltd and Aurobindo Pharma Ltd cases, cited by learned AR, subsequently Chennai Bench itself has passed another Order holding that Appellant would be eligible for cash refund. Further, the view of the Bench in the cases of Servo Packaging Ltd & Aurobindo Pharma Ltd were prior to the clear view brought in by the Larger Bench in the case of Bosch Electrical Drive India Pvt Ltd (cited supra), which has held as under: "49. In the present case, the service tax was paid under the provisions of Chapter V of the Finance Act and refund was claimed under sub-section (3) ....