AI OCR 
TaxTMI 
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2024 (6) TMI 245
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....wever, it is an admitted position that due to unavoidable circumstances, the export obligation could not be met with. Accordingly, in terms of Customs Notification no. 16/2015 dated 01.04.2015 the appellant paid customs duty including CVD & SAD for such non-fulfilment of export obligation along with interest as applicable. The following table depicts the details of the amount thus paid by the appellant to the Government. Sr. No. EPCG authorisation No. & Date Challan No. & Date CVD (Rs.) SAD (Rs.) Total (Rs.) 01. 1130001860 dated 09.08.2010 Challan dated 01.10.2021 17,08,206 7,57,202 24,65,408 02 1130001962 dated 25.11.2010 Challan dated 24.12.2021 13,48,957 6,54,783 20,03,740 03 11300002385 dated 03.02.2012 Challan No. 165 & M-1947 dated 25.03.2022 2,86,207 1,07,454 3,93,661 49,90,979/- 2. It is the contention of the appellant that in terms of the CENVAT Credit Rules, 2004 CCR , they are entitled to avail the CENVAT credit on the CVD and SAD components paid on such imported goods (towards the non-fulfilment of the export obligation), when such goods are us....
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....s, 2004 ceased to exist and the appellant were not in a position to avail the cenvat credit of such CVD and SAD paid by them. The appellant assails the order of learned Commissioner (Appeals) in not considering the scope of Section 142 of GST Act, 2017 allowing refund of any claim for refund, specially carved out to cater to miscellaneous transitional refund of CENVAT credit, duty, tax, interest or any other amount paid for under (existing law), submitting inter alia that sub-section 3, 6 (a), 8(b) and 9(b) of Section 142 of GST Act 2017 clearly provide for disposal of such refund claim filed in accordance with the existing law and any amount eventually accruing to be paid in cash. The relevant provisions of section 142 are enumerated herein under: "Section 142. Miscellaneous transitional provisions. (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 cont....
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....Central Excise Act, 1944(1 of 1944) and the amount rejected, if any, shall not be admissible as input tax credit under this Act." 8. They further submit that the combined reading of the legal provisions caters to a situation where any claim of tax etc., becomes due to a person under the existing law to be dealt in accordance with the transitional provisions of section 142 of the CGST Act, 2017. They, therefore, submit that they are rightly entitled to the refund claim denied by the authorities below. 9. Drawing attention to para 8.2, 8.6 and 8.7 of the OIA the appellants contends that this rejection of the refund on the said grounds were not appropriate as the appellant had undisputedly paid the CVD and SAD well after the introduction of the GST law and that no CENVAT Credit or ITC could be availed and nor ER-1 or TRAN-1 filed, as held by the learned Commissioner under para 8.2 of the order. 10. Learned advocate Shri Mukesh Soni further brought to notice that the department in a similar situation in an order passed by the learned Commissioner (Appeals) GST, Central Excise, Indore vide Order in Appeal No. IND-EXCUS-000-APP-018-20-21 dated 08.07.2020, allowed the payment of ....
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....ng. Since the present case does not fall under said category, there is no question of processing of impugned refund claim under Rule 5 of Cenvat credit Rules, 2004. Similarly, other provisions of Rule 5A of Cenvat credit Rules, 2004 and Rule 5B of Cenvat credit Rules, 2004 are meant for refund of Cenvat credit under specified conditions which are not applicable to present refund claim. Hence, the contention of the Appellant that their refund claim is covered under Section 142(3) of CGST Act is not sustainable on merit. 15. Further, as regards applicability of Section 142 (8) of CGST Act, 2017, I find that the duties (CVD & Addl. CVD) paid by the Noticee which results in Cenvat credit amount of Rs. 45,97,318/- has not become refundable in pursuance of an assessment or an adjudication proceeding instituted before, on or after the appointed day because, they have merely become eligible for said Cenvat after the amount in pursuance to assessment but it has snot become refundable to them under the existing law. Accordingly facts provisions of Section 142(8) (dable the Act cannot be made applicable to the of the present case. 16. In this regard, I find that the duty of ....
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....he order in appeal. The same is noted as under: "08.1 From the records placed before me, I find that the Appellant filed refund claims of Rs. 45,97,318/- (total of CVD of Rs. 31,85.333/- plus SAD of Rs. 14,11,985/-) and of Rs.3.93.661/- (total of CVD of Rs.2,86,207/- plus SAD of Rs. 1,07,454/-) in respect of duties of Customs under Section 11B of the said Act before the jurisdictional Assistant Commissioner of Central Excise. The only ground for claiming such refund is that as they cannot avail Cenvat credit under the Cenvat Credit Rules, 2004 (here-in-after referred to as the Cenvat Rules) in respect of duties of Customs of Rs. 45,97.318/- (total of CVD of Rs.31.85.333/- plus SAD of Rs 14.11.985/-) and of Rs.3.93,661/- (total of CVD of Rs.2.86.207/- plus SAD of Rs. 1,07,454/-), thus contended that they were eligible for refund of said input tax credit in-terms of Section 142 of CGST Act, 2017. Before, I proceed further, I find that provisions of sub-section (1) of Section 11B of the said Act allows refund of "duty of excise and interest, if any, paid on such duty", therefore, find that the provisions of Section 11B of the said Act nowhere allows refund of duty/ duties of ....
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....2(3) of the CGST Act has no applicability under the facts and circumstances of this case 08.3. It is not in dispute that the refunds under the existing law of Service Tax as well as Central Excise Act, 1944 are governed by Section 11B of the Central Excise Act, 1944 and sub-section (2) of Section 11B also refers to application for refund made under Section 11B(1) of Central Excise Act, 1944. Further Section 11B(3) of Central Excise Act, 1944 clearly provides that all kinds of refunds including those arising out of judgment, decree or orders of court or tribunal are to be dealt with in accordance with the provisions of Section 11B(2) of Central Excise Act, 1944. It is also important to note that Section 11B(2) of Central Excise Act, 1944 deals with the manner in which applications for refund under Section 11B(I) are to be dealt with as it uses the words "such application" which is clearly referable to Section 11B(I) of Central Excise Act, 1944. Further, the proviso to Section 11B(2) deals with situations of rebate of duty: unspent advance deposits; principles of unjust enrichment in cases where duty of excise is paid by manufacturer or borne by buyer and who have not passed....
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....tuations, for which, the provision if not Section 142(3), no other eligible provision is available. Therefore, this Court feels that, since it is a dire necessity, as these kind of situation necessarily to be met with by the Legislation, for which, these transitional provision has been brought in in the Statute Book, there can be no impediment for invoking Section 142(3) of the Act by invoking the "Doctrine of Necessity"." (emphasis supplied) 16. It is further observed that the question of refund in cash of CVD/SAD paid, on account of in admissibility of CENVAT credit, is now no more res-integra and cash refund of such duties paid utilising the provisions of section 142 (supra) have been liberally approved of by various judicial/ quasi-judicial authorities. The Principal Bench of the CESTAT in Excise Appeal No. 50808 of 2020, 50809 and 50810 of 2020 (SM) in the case of M/s Mithila Drugs Pvt Ltd. vs. Commissioner, Central Goods and Service Tax vide Final Order Nos. 50157-50159/2022 had observed as under : " 7. Having considered the rival contentions, I find that the payment of CVD and SAD subsequently during GST regime, for the imports made prior to 30.06.2017 i....
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....e reason that the appellant was granted an advance license No. 5610005102 dated 21.03.2017 as is apparent from the Show Cause Notice itself. It is also nowhere been denied that the appellant could not fulfill the export obligation arising out of the said license. The only course of action with the appellant in the given circumstances was to seek the redemption which has also not been denied. The letter of DGFT dated 17.01.2018 is apparently and admittedly pursuant to the appellant's own request of seeking redemption. The apparent and admitted fact remains on record is that the entire customs duty with respect to the inputs imported by the appellant stands fully deposited by the appellant not only alongwith interest but also with the penalty as was directed to be paid while seeking said redemption. These admitted facts are sufficient to hold that the appellant became entitled to avail Cenvat Credit of the CVD/SAD paid by him on the imported inputs in terms of Rule 3 of Cenvat Credit Rules, 2004 (CCR). 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 there....