TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 180
X X X X Extracts X X X X
X X X X Extracts X X X X
....ant imported the capital goods without payment of duty under EPCG scheme; however, the appellant could not fulfil its export obligations against the said import due to lack of export orders in order to regularize the said imports. The appellant paid the customs duties along with interest. These duties were paid during GST regime. Thereafter, the appellant approached the DGFT department and the DGFT department issued the discharged certificate to the appellant. Thereafter, the appellant filed the refund application under Section 142(6)(a) of the CGST Act, 2017 seeking cash refund of Cenvat Credit of CVD (Rs.23,72,607/-) and SAD (Rs.10,21,081/-) along with interest (Rs.54,23,577/-) total amounting to Rs.88,17,266/-. A show cause notice was issued to the appellant proposing to deny the refund on the ground of non-fulfillment of condition of export under advance licence, as the same was not covered under Section 142 ibid. The appellant filed detailed reply to the show cause notice. The adjudicating authority, after following the due process, rejected the refund on the fresh grounds other than the grounds stated in the show cause notice. Aggrieved by the said order, the appellant filed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ustoms duty liability is discharged beyond 01.07.2017. He also submits that due to coming into force of GST, this credit is no longer possible and therefore, under the transitional provision contained in Section 142(6)(a) of the CGST Act, 2017, this needs to be refunded in cash. 4.6 He further submits that this issue is no more res integra. This very issue, as to whether CVD & SAD paid subsequent to 2017, are eligible for cash refund under Sections 142 (3) and 142(6)(a) of the CGST Act, 2017, has been decided in favour of the assessee/importer in the following cases : Sri Chakra Poly Plast India Pvt Ltd vs Commissioner of Central Tax - Final Order No. 30023/2024 dated 17.01.2024 in Appeal No. E/30369/2022 - CESTAT Hyderabad Mithila Drugs Pvt Ltd vs. Commissioner of CGST - 2022 (3) TMI 58 CESTAT NEW DELHI Clariant Chemicals India Ltd vs. CCE & ST - 2022 (10) TMI 796 CESTAT MUMBAI ITCO Industries Ltd vs. Commissioner of CGST & CE - 2022 (6) TMI 1040 CESTAT CHENNAI Flexi Caps & Polymers Pvt Ltd vs. Commissioner of CGST & CE - 2021 (9) TMI 917 CESTAT NEW DELHI 4.7 He further submits that the Commissioner (Appeals) while rejecting the refund, has relied upon the CBIC Circula....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation of EPCG authorizations. 5.1 On the other hand, the learned AR for the Revenue reiterates the findings of the impugned order and submits that the Commissioner (Appeals) has passed the impugned order by following the CBIC Circular dated 22.06.2020 and has also relied upon the decision of the CESTAT in the case of M/s Servo Packaging Ltd (supra). 5.2 The leaned AR further submits that the appellant is not entitled for Cenvat Credit of interest under the existing law. The claim of the appellant is only for the Cenvat Credit of duties paid by them for non-fulfillment of export obligations. They have not disputed the payment of duties or its delayed payment. Interest has only been charged for delayed payment. Since, the payments are not under challenge, therefore, they are liable for payment of interest on delayed payment. 5.3 The learned AR further submits that refund under Section 142(6)(a) of CGST Act, 2017 is only in respect of amount of Cenvat Credit of duties, which is available to them under existing law; but no credit of interest paid for delayed payment of customs duties is available to them under the existing law. He also submits that in the decisions relied upon by th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....duty and interest, if any, paid on such duty - 2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub- section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Principal Commissioner of Central Excise or Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....without producing proper records of duty paid invoices etc. in manufacture of dutiable final product, refund cannot be given. I further find that refund of CVD and SAD in question is allowable, as credit is no longer available under the GST regime, which was however available under the erstwhile 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of facts, it can be seen that Department has rejected the claims invoking Rule 9(1)(b)of Cenvat Credit Rules, 2004. The said provision has already been reproduced above. The Department is of the view that credit is not eligible as appellant has paid the duties only after issuing a demand notice. On perusal of the alleged demand notice, it is merely in the nature of an intimation letter and has not been issued invoking any provisions of Customs law or Excise law. Further, in such intimation also, there is no allegation of any fraud, collusion or suppression of facts with intent to evade payment of duty. There is no evidence placed 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 the case 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 asunder: "5.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ore [2021 (9) TMI 917 - CESTAT New Delhi], the Delhi Bench has held as under: 7. Apparently, the said Cenvat Credit could not be availed any more due to the erstwhile law i.e. Central Excise Act, 1944 being 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 t....