2024 (5) TMI 767

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....ther the appellant is eligible to claim refund of CVD and SAD in respect of payment of custom duty for regularizing excess import under advance authorization prior to introduction of GST regime but the duty liability was finalized and paid after the introduction of GST. The said CVD and SAD was paid by the appellant on their own suo moto in order to regularize excess import qua export obligation fulfillment. 2. Shri Saurabh Dixit, Learned Counsel appearing on behalf of the Appellants submits that both the lower authorities have rejected the claim on the ground that since the CVD and SAD was paid during GST regime the same is not available for cenvat credit after 01.07.2017. He submits that since the duty of CVD and SAD pertains to May, 2....

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....submits that as per the overall facts of the case, there is no malafide on the part of the appellant as the appellant have legally fulfilled their obligation of payment of CVD and SAD on their own suo moto without any notice of the department. For this reason also Rule 9 (1) (b) and (bb) has no role. 2.3 He also placed reliance on the following judgments whereby in the identical situation, the refund claim was allowed under Section 142 (3) of CGST Act, 2017. 3. Shri P. Tripathi & Shri R R Kurup Learned Superintendent (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. 4. I have carefully considered the submission made by both sides and perused the records. I find that the appellants have claimed th....

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....hether the appellant's claim of CVD and SAD is hit by Rule 9 (1) (b) or(bb) of Cenvat Credit Rules, 2004, I find that firstly there is no demand notice in respect of CVD and SAD which was paid by the appellants on their own and also no adjudication as regard the suppression fact, therefore, in absence of any charge by way of show cause notice or adjudication thereof, the allegation of suppression of fact only to invoke Rule 9 (1) (b) or(bb) of Cenvat Credit Rules, 2004 is on assumption and presumption which cannot be accepted. Moreover, the payment of CVD and SAD is not towards the non-payment of duty by suppression of fact. In the present case the advance license is on record and since there was excess import as compared to the eligible un....