TaxTMI 
TaxTMI 
2024 (9) TMI 905
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....ecurity of gold. For the period from April 2017 to June 2017, the petitioner had filed returns under the provisions of the Finance Act, 1994 disclosing payment of Service Tax of Rs.10,36,39,987/- Education Cess (EC) amounting to Rs.67,69,195/-, Secondary and Higher Education Cess (SHEC) amounting to Rs.35,18,566/- and Krishi Kalyan Cess (KKC) amounting to Rs.54,65,526/-. 2. Following the 101st amendment to the Constitution and the introduction of GST, the petitioner was under the impression that unutilized credit on account of payment of Service Tax including amounts paid towards EC, SHEC and KKC could be transitioned to the GST regime. According to the petitioner, the provisions of Section 140(8) of the CGST Act permitted such transitio....
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....ed in the Finance Act, 1994. The order of the competent authority (respondent No.2) rejecting the refund claimed as time-barred is on record as Ext.P8. In the meanwhile, the petitioner had also filed an application for refund under Section 54 of the CGST Act clearly stating that the same needs to be processed only if Ext.P4 application is rejected by the competent authority. 3. Sri. Jose Jacob, the learned counsel appearing for the petitioner vehemently contends that the rejection of the application for refund filed by the petitioner in terms of the provisions contained in Section 142 (3) of the CGST Act as time-barred is clearly unsustainable in law. It is submitted that going by the provisions as they stood at the time of the introduct....
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.... contained in Section 54 of the CGST Act. It is submitted that Ext.P5 application filed by the petitioner has also not been considered by the competent authority. It is therefore submitted that Ext.P8 order may be set aside and the matter may be remanded for consideration on merits by the competent authority or it may be held that the petitioner can process its application for refund (Ext.P5) in accordance with the provisions contained in Section 54 of the CGST Act. 4. Sri. P.R. Sreejith, learned counsel appearing for the respondent Department would submit that the petitioner is clearly not entitled to the benefit of refund of transitioning the amounts paid as EC, SHEC and KKC in terms of the provisions contained in the CENVAT Credit Rul....
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.... and it is also a time-barred one. It is submitted that the Court does not issue futile writs and unless this Court were to find any right on the petitioner to claim a refund under the provisions of the Service Tax Act, 1994 read with the relevant provisions of the Central Excise Act 1944, there is no question of this Court directing the application of the petitioner to be considered on merits even if this Court were to find that the rejection of the application on the ground of it being time-barred is not sustainable in law. 5. Having heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents, I am of the view that the petitioner has not made out any case for the grant of any of....
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....ed in Explanations 1 and 2 at all. Therefore, the exclusion of Education Cess and Secondary and Higher Education Cess for the purpose of carry forward and set off under Section 140 is specifically provided in Explanation 3, which is clearly applicable to gather the legislative intent, irrespective of piecemeal enforcement of Explanations 1 and 2 by the Legislature. Explanation 3 has its own force and application and does not have a limited application only via the route of Explanation 1 and Explanation 2. The Departmental Circular dated 02.01.2019, quoted above, in our opinion, rightly clarified this position with reference to Explanation 3 to Section 140 of the Act 39...........The "taking" of the input credit in respect of Educat....
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....ining a claim for refund in the nature of Ext.P4 does not arise for consideration. 6. Coming to the claim of the petitioner that it is entitled to entertain a claim for refund under the provisions of Section 54 of the CGST Act, I am of the view that the said contention cannot be accepted in the light of clear provisions contained in Sub-Section (3) of Section 54 of the CGST Act. It is clear from a reading of Sub- Section (3) of Section 54 of the CGST Act that a claim for refund of the CGST/SGST/IGST (in cash) can be entertained only in two circumstances. The first is where there is a zero-rated supply of goods or services and the second one is, where the refund application arises on account of an inverted duty structure, i.e where the du....