TaxTMI 
TaxTMI 
2024 (2) TMI 367
X X X X Extracts X X X X
X X X X Extracts X X X X
....uired to pay the initial rebate claim as CVD. At the time of imports, the appellants have calculated and paid the CVD under the re-import Bills of Entry. These stocks have been taken by them in their books. In the normal course, they would have been eligible to take the Cenvat Credit but they did not have the means to take the credit in the GST regime. Therefore, they have filed refund claim in terms of Section 142(3) of the CGST Act, 2017 before the Customs Authorities. [Present Appeal No. C/30156/2020, C/30159/2020, C/30209/2020, C/30210/2020, C/30211/2020 and C/30281/2020] ii) The appellants have cleared their goods from their one unit to another unit for which they were required to follow the procedure under Rule 8 of the Valuation Rules 2000, by filing the Cost Certificate under CAS-4. After initial clearance from one unit to another unit on payment of Excise Duty, when CAS-4 certificate was finalised, differential Excise Duty was required to be paid and was also paid. In the normal course, the differential Excise Duty so paid would be eligible as Cenvat Credit to the receiving unit. However, as the differential duty was paid after 01.07.2017 in the GST regime for the past p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uch correctly paid duty i.e., for refund of any duty paid in accordance with law, there shall be specific provision under the law, with specific conditions stipulate therein. For example, in respect of Additional Duty of Customs (SAD) leviable under Section 3(5) of the Customs Tariff Act, 1975, on the goods which are imported into India for subsequent sale, exemption form whole of SAD was granted by way of refund, under Notification No. 102/2007-Cus dated 14.07.2007, as amended, subject to the condition that appropriate sales tax or value added tax is paid on the sale of such goods. However, any similar provision for refund of the Additional Duty of Customs (CVD), leviable under Section 3(1) of the Customs Tariff Act, 1975 is not made available under Customs Law, even after the introduction of GST. Thus, as on date, there is no provision under Customs law for refund of correctly paid Additional Duty of Customs (CVD), for the reason that the CENVAT credit or input tax credit of such duty cannot be availed under the respective laws. 16. It appears that, M/s APL(U-I) are well aware that there is no provision under Customs law for refund of Additional Duty of Customs (CVD) only for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly, for claiming the refund of CVD paid by them under the provisions of Customs Act, 1962. Thus, the subject refund claim filed by M/s APO(U-I) is not in accordance with the law. 3. On appeal, the Commissioner (Appeals) has rejected the refund claims on the following grounds: 8. Appellant's contention in appeal is that since the existing law has been subsumed by the CGST Act, 2017, since they are unable to avail cenvat credit under GST Law, refund of such credit in cash can be granted under the provisions of Section 142(3) of the CGST Act 2017. I have carefully considered the contention on this count. The said provisions of Section 142(3) of the CGST Act, 2017 are reproduced hereunder for ready reference: "142(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 sect....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Polymers (P) Ltd., VsCCx, Indure [2022 (58) GSTL 545 (Tri-Del)] 6. The learned counsel submits that in all the above cases, it has been held that when the CVD and SAD have been paid as part of the Customs Duty foregone in respect of non-fulfilment of export obligation, the importer would be eligible to claim the cash refund as per Section 142 (3) of the CGST Act 2017. In the present case admittedly what is paid is the CVD+SAD or the IGST in the present regime. What has been held as eligible for CVD+SAD would be equally be applicable for the IGST paid, since the ratio of Section 142(3) is squarely applicable. 7. He also relies on the Larger Bench's decision in the case of Bosch Electrical Drive India Pvt Ltd., Interim Order No. 40021/2023 dated 21.12.2023, wherein it has been held that the only way to get the refund of the amount which otherwise would have been available under Cenvat, is to rely on Section 142(3) and file the refund claim accordingly. 8. In view of these submissions, he prays that the appeal may be allowed. 9. The Learned AR submits that the appellant has filed the refund claims before Customs Authorities and they have held that they do not have the Jurisdictio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Credit could not be taken by them in the present GST regime because of which they have filed the refund claims. In some cases, the appellants have exported goods and initially had claimed the full export benefit in terms of rebate of excess duty. However, since part of the goods were rejected by the overseas importer and they were sent back to India, the appellant was required to forego the export benefits like Rebate of Excise Duty initially taken by them. The same was paid by them by way of CVD at the time of reimport. Even, in this case, in the normal situation, they would have been eligible to take the Cenvat Credit but they could not do so in the present regime. 14. The issue as to whether such matters of cash refund claimed under Section 142(3) could be decided by this Tribunal was before the Larger Bench in the case of Bosch Electricals India, decided by the Larger Bench on 21.12.2023. The Larger Bench had concluded that the CESTAT has the jurisdiction to take up the Appeals of such nature. The Larger Bench has also categorically held at para 49 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pplied] 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 legislature for which contingent provision is well enumerated in Clause 6(a) of Section142 of the CGST Act that deals with claim for CENVAT Credit after the appointed date under the existing law. It reads:- "6(a) every proceeding of appeal, review or reference relating to a claim for CENVAT credit initiated weather before, on or after 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 prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....appellant is eligible for credit of CVD and SAD paid by them. The Tribunal in the case of Circor Flow Technologies (supra) and Mithila Drugs Pvt. Ltd. (supra) had analysed a similar issue. In M/s. Mithila Drugs Pvt. Ltd., the facts are identical to that of the instant case. The relevant paragraphs read asunder: "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 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 sub sequently during GST regime, for the imports made prior to 30.06.2017 is not disputed under the advance....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iled their claim there. If the Customs officials felt that the refund claim was filed without jurisdiction, they should have returned the refund claims on this ground, advising the appellant to approach the GST authorities, which was not done in this case. Moreover, in the order portion, the Adjudicating authority has not rejected the refund claim on this ground. Even in the subsequent appeal before the Commissioner (Appeals), he also has dealt with the non-applicability of the Section 142(3) and dismissed the appeal. In respect of differential Excise duties paid, the appellants have filed the refund claims with Central Excise Authorities only as can be seen from the Appeal papers. Therefore, this objection of the AR is legally not sustainable. 20. In respect of AR's concern that Bosch LB decision is applicable only for Service Tax and Central Excise related matters is concerned, it is seen that in that case only Service and Central Excise issue were before the LB. Further, the Cenvat taking is guided by the Cenvat Credit Rules 2004. Hence, in this case where the issue of CVD,SAD or IGST to be taken as cenvat are involved, the LB decision is required to be applied. It is also note....