TaxTMI 
TaxTMI 
TaxTMI 
2024 (8) TMI 311
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....nal credit under Tran-1 nor for the credits which could not availed due to late receipt of bill or late booking of bills. The original authority further held that Section 142 (3) makes it very clear that every claim for refund file by any person, on or after the appointed day, the 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 provision of the existing law and in the instant case the appellant paid tax under the existing law but it is observed that there is no provision to refund such amount of service tax paid under reverse charge mechanism under the existing law. In view of the same the original authority rejected the refund claim. On appeal filled by the appellant the Appellate Authority i.e. the Commissioner (Appeals) held that under the existing law in terms of Section 142 (3) of CGST Act, 2017, there is no provision to refund such amount of service tax paid under reverse charge mechanism under existing law. Accordingly, Commissioner (Appeal) upheld the order of the original authority. 2. Learned Counsel for the appellant has mainly argued that since they paid the service t....
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....e other hand supported the decision of Commissioner (Appeals) on the grounds that there is no provision under the existing law to grant refund of credit in respect of service tax paid under reverse charge mechanism and the provisions under Section 142 (3) is quite clear that unless the refund of any such input credit is otherwise eligible under the existing law, the same cannot be considered for refund in cash in terms of under Section 142 (3). Learned DR also points out that specific miscellaneous transition provisions have been made under the Act itself and therefore as claimed by the appellant that they were otherwise entitled for refund under Section 142 (3) of the said Act, has to be examined in terms of the provisions under the said Section and Sub-Section. For the ease of reference, the provisions under Section 142 (3) is reproduced below: (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, notwi....
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....ontained under the provisions of existing law. The provisions of Section 142(3) are unambiguous, wherein it essentially indicates that if CENVAT credit were otherwise eligible for refund under the erstwhile Central Excise Act, the same needs to be processed and allowed in accordance with the provisions of Section 142(3), therefore Section 142(3) of CGST does not provide for any independent statutory provisions to examine and allow the eligibility of refund on its own without any reference to the existing law. 9. Thus, it is apparent that Section 142(3) does not give any independent entitlement for granting refund of CENVAT credit which could not be utilized or transitioned on any count whatsoever. The erstwhile existing law has no provision for refund of unutilized or accumulated CENVAT credit except in the case of export. The perusal of CENVAT Credit Rules (CCR) 2004 under the existing law clearly evidence that refund of CENVAT credit can only be made under specific circumstances as prescribed under Rule 5, 5A and 5B and subject to certain procedures, conditions, limitations etc as may be notified by a notification in this regard. On examination it is found that there is no provi....
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....earned Judge to some extent. Accordingly, the same is modified by directing 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." 11. The above decision of Division Bench of Madras High Court is unambiguous and clear wherein the department is directed to examine 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. Thus, the remand order of Madras High Court is an open remand and the issue has to be decided on merits. In such a scenario the issue at hand i.e. cash refund of CENVAT credit under Section 142(3) is not decided by the Hon'ble Madras High Court, as such Ganges International decision is not of any help to the appellant herein. 12. The Learned Council reliance on the Bosch Electrical Drive India Pvt Ltd., decision CESTAT, Chennai Larger Bench decision is of no relevance, ....
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....SHMIR CONDUCTORS [1997 (96) E.L.T. 257 (Tribunal)], wherein it is held that "however, there is a decision of only one High Court in regard to disputed interpretation or proposition of law, the Tribunal is bound to follow that order since it is not at liberty to disregard the solitary High Court decision." (Para 10.2). Hence, the High Court's decision of Jharkhand in the Rungta Mines case needs to be followed by CESTAT, in-spite of JSW Steel decision in their own case. In the Rungta Mines decision Hon'ble High Court categorically ruled that refunds under existing law are governed by Section 11B of Central Excise Act and that entire Section 11B does not sanction any refund where the assessee has failed to claim CENVAT credit as per CENVAT Credit Rules 2004 and has lost its right to claim such credit by claiming it within the time prescribed. The relevant paras are cited below: 42. 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 subsection 2 of section 11 B also refers to application for refund made under section 11 B(1) of Central Excise Act, 1944. Fur....
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....ecision is reproduced hereunder. "45. The provision of section 142(3) does not entitle a person to seek refund who has no such right under the existing law or where the right under the existing law has extinguished or where right under the new CGST regime with respect to such claim has not been exercised in terms of the provision of CGST, Act and the rules framed and notifications issued. Meaning thereby, section 142(3) does not confer a new right which never existed under the old regime except to the manner of giving relief by refund in cash if the person is found entitled under the existing law in terms of the existing law. Section 142(3) does not create any new right on any person but it saves the existing right which existed on the appointed day and provides the modalities for refund in cash if found entitled under the existing law as the entire claim is mandated to be dealt with as per the existing law. It neither revive any right which stood extinguished in terms of the existing law nor does it create a new right by virtue of coming into force of CGST, Act. 46. Section 174 of the CGST Act read with section 6 of the General Clauses Act saves the right acquired, accrued or ....