TaxTMI 
TaxTMI 
2024 (6) TMI 180
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....mponents falling under ITCHS 8708. The appellant 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. Aggr....
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.... obligation has taken place prior to 01.07.2017 and the customs 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 subm....
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....ign Trade Policy, which makes the appellant eligible for the Cenvat Credit towards the duty paid while regularization 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 ....
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....put or capital goods received in the factory of manufacture of final product or [by] the provider of output service on or after the 10th day of September, 2004; and (ii) .......... " "Section 11B(2) of the Central Excise Act, 1944: Claim for refund of 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 expo....
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....me, for the imports made prior to 30.06.2017 is not disputed under the advance authorisation scheme. It is also not disputed that the appellant have paid the CVD and SAD in August, 2018 by way of regularisation on being so pointed out by the Revenue Authority. Further, I find that the Court below have erred in observing in the impugned order, that 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 ord....
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....uch CENVAT Credit amount shall be paid to the Appellant in cash, it can't avail dual benefits once order of this Tribunal is duly complied by the Respondent-Department by the closing date of the window." [Emphasis supplied] 12. In the case of ITCO Industries Ltd vs CGST & CE, Salem [2022 (6) TMI 1040 - CESTAT Chennai], the Chennai Bench has held as under: 11. From the narration 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....
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.... impugned orders are set aside." 12. After appreciating the facts and evidence as well as applying the principles of law laid in the above decisions, I am of the view that the rejection of refund claims cannot be justified. The impugned orders are set aside. Appeals are allowed with consequential relief, if any, as per law." [Emphasis supplied] 13. In the case of Flexi Caps & Polymers Pvt Ltd vs CGST & CE, Indore [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....