TaxTMI 
TaxTMI 
2024 (6) TMI 178
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....y payable is indicated as 'zero'. However, subsequently a Challan dated 18.07.2017 was issued by JNCH customs authorities with reference to File No. S/4-Re-Imp. 92/2017- 18 Gr. II A.P. dated 11.07.2017 for payment of CVD at 12.5% for an amount of Rs.1,50,147/- which was duly paid by the appellant on 18.07.2017. The appellant claimed refund of CVD paid under the existing statute i.e., Central Excise Act, 1944 as they were unable to take Cenvat credit of duty paid as input credit as the same was paid after 01.07.2017 i.e., the appointed date for introduction of GST regime and had the credit been taken earlier then this would have been transferred and would be available under TRAN-1 credit under CGST regime. 2.2 In view of the above, the appellant claimed refund of such CVD paid by filing refund claim letter dated 12.07.2018 along with requisite Application in the prescribed format as Form-R under Section 11B of the Central Excise Act, 1944 read with Section 142(3) of Central Goods and Service Taxes (CGST) Act, 2017. On scrutiny of such refund claim, the original authority had issued a deficiency memo dated 14.03.2019 which was replied to by the appellant; the said original authority....
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....horised Representative (AR) appearing for the department, on the other hand, would submit that the appellant was eligible to avail Cenvat credit of the CVD paid on the imported goods under the erstwhile Act and there was no right to claim refund of the same as having been accrued to them. Further, even if the refund is sought to be decided under Section 142(3) of the CGST Act, 2017, it is to be decided under Section 142(1) ibid. There is a specific provision under CGST Act pertaining to return of goods, and therefore he pleaded that the issue should be decided under that provision. Learned AR relied upon the decision of the Hon'ble High Court of Jharkhand in the case of Rungta Mines Ltd. Vs. Commissioner of CGST & CX, and stated that the appellant is not eligible for a refund in terms of the above order. Therefore, he prayed that the instant appeal filed by the appellant may be dismissed. 5. Heard both sides and perused the records of the case. I have examined the submissions advanced by the learned Advocate appearing for the appellant and the learned Authorized Representative of the Department. Further, I have also perused the additional written submissions in the form of paper b....
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....er subsection (3) of section 142 of the CGST Act, under which the claim was required to be disposed of in accordance with the provisions of the existing law. Therefore, even if the service tax had been deposited by the appellant after 01.01.2017, nonetheless the refund of any amount of the CENVAT credit could be claimed only under subsection (3) of section 142 of the CGST Act and against this order an appeal will lie to the Tribunal. 50. The reference is, accordingly, answered in the following manner: An appeal would lie to the Customs, Excise & Service Tax Appellate Tribunal against an order passed under section 142 of the Central Goods and Services Tax Act, 2017." 6.3 By perusal of the above order of the Larger Bench of the Tribunal, I find that it has been made clear that the issue of deciding an appeal against the order relating to the refund decided under the provisions of Section 142 of CGST Act, 2017 is required to be dealt by this Tribunal. Accordingly, I take up the matter of the present appeal for examination in terms of the legal provisions under Section 142 ibid. The relevant legal provision under Section 142 ibid is reproduced below for ease of reference: Centra....
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....isions 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 (1 of 1944): Provided that where any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse: Provided further that no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act. (4) Every claim for refund filed after the appointed day for refund of any duty or tax paid under existing law in respect of the goods or services exported before or after the appointed day, shall be disposed of in accordance with the provisions of the existing law: Provided that where any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse: Provided further that no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act. (5) Every claim fi....
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....chedule to the Customs Tariff Act, 1975 attract Basic Customs Duty (BCD) of 7.5% and Additional Duty of Customs (CVD) of 12.5%, re-import of specified goods within a period of 3 years from the date of export for the purpose of reconditioning or repair; and in respect of re-import of goods within a period of one year from the date of export for the purpose of reprocessing, refining, remaking or for subjecting to similar such process are exempted from payment of customs duty in terms of Notification No.158/95-Customs dated 14.11.1995 as amended. However, in the present case the appellant had not claimed such benefit in the B/E and it is not the case of the appellant that the import is for reprocessing etc., and therefore, they were required to pay the applicable duty on the re-import of goods. Further, additional duty of Customs (CVD) paid on imports is eligible to be taken as Cenvat credit in terms of Cenvat Credit Rules, 2004. However, as the CVD was paid subsequent to the appointed date (01.07.2017) for introduction of GST, i.e., on 18.07.2017, the appellant was unable to take credit of the same as Cenvat credit. Learned Commissioner (Appeals) had accordingly gave a finding that t....
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....im, due to transitional provision has come into effect from 1-7-2017. It is also not in dispute that they had paid the service tax for the period from April 2017 to June 2017 belatedly i.e., on 2-5-2018, after pointing out the same through departmental audit. Thereafter, the assessee filed an application for refund. The appellant rejected the claim of refund made by the assessee on the premise that there is no provision in the new regime to allow such refund as input tax credit in GST/credit in Electronic cash ledger/payment in cash. The said order was put to challenge by the assessee by filing WP.No.528 of 2019. After considering the case of the assessee, the learned Judge was of the view that merely because the transitional provision has come into effect from 1-7-2017, the chance of making an application under section 140(1) to seek the refund or otherwise of the credit, which was subsequently accrued in the account of the assessee, cannot be denied. Observing so, the learned Judge ordered the said writ petition, by setting aside the order rejecting the claim of refund made by the assessee and remanding the matter to the appellant for fresh consideration. The operative portion of....
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....the appellant to consider the application of the assessee under section 142(3) of the CGST Act, 2017, based on the available materials and dispose the same, on merits and after affording an opportunity of hearing to the assessee, within a period of six weeks from the date of receipt of a copy of this judgment." 8.1 Further, I also find that the said issue of refund of duty paid under the existing law during the subsequent period has also been considered by the Hon'ble High Court of Madras in another case of Datamark Prodapt India BPO LLP (supra) and the refund was allowed. The relevant paragraphs of the said judgement of the Hon'ble High Court is extracted and given below: "A reading of the trajectory of events that have transpired in this matter would reveal the tortured attempts by the Assessee and the Department, the former seeking to avail CENVAT credit that was available to it and the latter calling on every provision under the Act, to deny its eligibility. 2. The Goods and Services Tax (GST) came into effect from 01.07.2017. The petitioner has credit of CENVAT of a sum of Rs.10 lakh (approx) for the months of April, May, June, 2017. The law entitles an assessee to seek....
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....this order, praying that its application for refund be considered, excluding the time spent before the GST authorities, as that was clearly a wrong forum. The impugned order has been passed on 03.11.2010 on the sole ground that, as the order of the first appellate authority dated 30.07.2020 has attained finality, the question of refund does not arise. 11. This order is patently erroneous on several grounds. Firstly, the eligibility of the petitioner to refund on a substantive basis has itself, never been questioned. The denial is based solely on a technical basis. 12. That apart, the fact that Notification No.27/2012 has been held to propound an incorrect condition by this Court as well as by the CESTAT ought to have merited consideration with the authority. Instead he does not advert to this aspect of the matter at all. 13. Further, the claim is fully supported by the provisions of section 142(3) of the Act, that reads as follows:- "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 pr....