TaxTMI 
TaxTMI 
2024 (9) TMI 507
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....2. The issue in short is that the appellant had taken Advance Authorisation for importing certain goods on 07.06.2014 and later in terms of the same they imported various consignments under the cover of 7 Bills of Entry dated 02.07.2014, 04.07.2014 and 15.07.2014. Later on, since they were unable to meet the export obligations, as required in terms of Advance Authorisation read with relevant notifications, they approached Policy Relaxation Committee (PRC) on 28.02.2019 for extension. However, the PRC after observing the grounds taken for relaxation being occurance of fire which happened in 2012, held that there was no merit or hardship in the argument made by the firm and hence rejected the request of the firm. Subsequent to this, the appellant paid total amount of Rs. 72,00,177/- which included CVD of Rs. 35,92,781/- and SAD of Rs. 13,45,122/- on 07.12.2020. They, thereafter, filed a refund claim of Rs. 49,40,903/- towards refund of CVD i.e. RS.35,92,781/- and SAD i.e. Rs. 13,45,122/- on 01.03.2021. Subsequently, after issuing the show cause notice, Order-in-Original dated 02.07.2021 was passed by Original Authority rejecting their refund claim. On appeal, Commissioner (Appeals) u....
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.... Pipe Industries [2020 (6) TMI 356 - CESTAT-HYD] vii. M/s Servo Packaging Ltd., Vs Commr of GST & CE, Puducherry [2020 (373) ELT 550 (Tri-Chennai)] 5. Further, in support of the contention that accrual of input credit is not a vested right rather it is a form of concession, he has relied on various judgments which are as under: i. M/s Nelco Ltd., Vs UOI [2020 (36) GSTL 24 (Bom)] ii. M/s TVS Motor Company Ltd., Vs The State of Tamil Nadu & Others [2018 (10) TMI 881-SC] iii. ALD Automative Pvt Ltd., Vs CTO [2018-TIOL-385-SC-VAT] Therefore, he counters the argument of the appellant that merely because they had paid the duty they become entitled for taking the credit because it is felt by them that it is their vested rights, is not correct. He also points out that in any case, they were aware by the end of 2015 itself that they were unable to fulfil the export obligation and therefore not entitled to notification benefit under which they had imported duty free, and that they could have paid the duty rather than waiting for various other options to get relaxation/extensions etc. In fact, there is a further great deal of delay in filing their application for relaxation bef....
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....d., and Rani Plastic Pipe Industries, cited supra. 8. Further, in the facts of the case, it is to be clearly understood that they are not seeking refund of CVD and SAD paid due to non compliance of condition for grant of Advance Licence/Advance Authorisation, as they have rightly paid the duty being not eligible for exemption. They are in fact seeking refund in cash of the credit of duty paid towards CVD and SAD, which would have occurred to them as credit under the existing law. The Original Authority and Appellate Authority have taken a stand that said credit, even if it occurs or becomes eligible in terms of existing law, the cash refund thereof was not possible under existing regime and hence they are also not eligible for cash refund in terms of provisions of Section 142 of the Act. 9. As regards denial of refund under Section 142(6) of the Act, Original Authority has held that it is not case of proceedings of appeal, review or reference for claiming CENVAT credit, as there is no order from any Appellate Body or Judicial Forum for granting any relief from payment of CVD or SAD. It is obvious that in facts of the case, it would not fall within the provisions of Section 142(6)....
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.... in order to avail any of credit, the assessee has to fulfil certain obligations and conditions and entitlement of credit per se is not an unfettered right. In this case, the admissibility of refund of credit of CVD and SAD would also have been dependent on various compliance in the first place Therefore, merely because the duty has been paid as a consequence to their non-fulfilment of obligation at a much later date, they would not become entitled for taking the refund of the same amount in cash under the provisions of the Section 142(3) or 142(6). In Servo Packaging Ltd., case, having almost similar fact Tribunal took a view that refund was not admissible under Section 142(3) of the Act. Para 10 and 11 is reproduced below for ease of reference: 10. Thus, the availability of CENVAT paid on inputs despite failure to meet with the export obligation may not hold good here since, firstly, it was a conditional import and secondly, such import was to be exclusively used as per FTP. Moreover, such imported inputs cannot be used anywhere else but for export and hence, claiming input credit upon failure would defeat the very purpose/mandate of the Advance Licence. Hence, claim as to the ....