AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (10) TMI 7
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....rovision for refund of balance of Education Cess & SHE Cess in Cenvat credit ledger. 1.2 A Show Cause Notice No. 75/19 dated 15.05.2019 was issued to the appellant proposing the rejection of the said refund claim. However, the original adjudicating authority vide Order-in-Original No. 02/2019 dated 06.06.2019 though rejected the claim of Rs.8,41,387/- out of said refund claim in respect of unspent amount of Education Cess & SHE Cess but sanctioned the balance amount of Rs.3,21,85/- on account of unspent amount of Profit & Loss Account (PLA). Said Order-in-Original was got reviewed vide Review Order No.67/2019-20 dated 13.09.2019 suggesting for an appeal against said Order-in-Original dated 06.06.2019. Since the refund of Rs.3,21,857/- have been erroneously sanctioned, the same is proposed to be recovered vide Show Cause Notice No. 75/60 dated 24.07.2020. The Order-in-Original dated 06.06.2019 was challenged by assessee as well as by the department who file appeal pursuant to review order as well. Both the appeals have been dismissed vide the Order-in-Appeal dated 22.01.2021. Being aggrieved the appellant-assessee is before this Tribunal. 2. We have heard Shri Anuj Agarwal, learne....
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....idered the same issue as involved in the present appeal. The decision of this Tribunal in M/s. Tecumseh Products India Pvt. Ltd. (supra) also specifically covers the issue in question. The arguments of the appellant qua these cases are misleading. The adjudication authority have erred in sanctioning refund of Rs.3,21,857/- in respect of unspent amount of PLA applying the time limit of three years under Limitation Act holding that under Section 11B of the Central Excise Act , 1944, no time limit has been prescribed for refund of unspent balance in PLA. The adjudication authority failed to appreciate the fact that the PLA or Account Current is nothing but advance deposition of Central Excise duty and for refund of such amount Section 11B ibid is very much applicable, which prescribes time limit of one year for refund from the date of deposit. 4.1. Learned Departmental Representative has relied upon the decision of Hon'ble Apex court in the case of Union of India and Ors. Vs. IndSwift Laboratories Limited reported as 2011 (265) ELT 3 (SC) wherein Hon'ble Apex Court summarized the legal position as follows: "20. A taxing statute must be interpreted in the light of what is clearly ex....
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....ion cess at the rate of 1 per cent of the total excise duty under Sections 126 and 128 of the Finance Act, 2007, which are reproduced hereunder: "126. (1) Without prejudice to the provisions of subsection (12) of section 2, there shall be levied and collected, in accordance with the provisions of this Chapter as surcharge for purposes of the Union, a cess to be called the Secondary and Higher Education Cess, to fulfil the commitment of the Government to provide and finance secondary and higher education. (2) The Central Government may, after due appropriation made by Parliament by law in this behalf, utilize, such sums of money of the Secondary and Higher Education Cess levied under subsection (12) of section 2 and this Chapter for the purposes specified in subsection (1) as it may consider necessary. X XXXXX XXXXXX XXXXXX XXXXXX 128. (1) The Secondary and Higher Education Cess levied under section 126, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985, being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Secondary and Higher Education Cess on excisable goods), at the rate of one per....
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....inance Act, 2015 w.e.f. 01.03.2015 that too up to 13.06.2017 and thereafter the appellant had transferred the same through GST TRAN-1 to the GST regime w.e.f. 01.07.2017. Though on being pointed out by the department, the appellant reversed the same, however, claimed the refund thereof. It is observed that education cess and secondary and higher education cess are to be taken and utilized for the purpose of payment, respectively, of the said cesses, only. Since Education Cesses are not levied under the GST Act, the same is not meant to be transitioned to the electronic credit register in the GSTN. 5.5 Further, I observe that the definition of 'eligible duties and taxes' as per the explanation 3 under Section 140 of the CGST Act, 2017 was amended with retrospective effect from 01.07.2017 whereby it is specified that cesses are excluded from the definition of 'eligible duties and taxes', Thus, the credit is ab initio not available for utilization for GST. In view of the above, cesses are not be transitioned through TRAN-1, as per the transitional provisions specified under CGST Act, the credit balances not transitioned to GST regime shall lapse, and, as such, the arg....
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....er person; (e) the duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any paid on such duty to any other person; (f) the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. A bare perusal of this provision denotes that instead of crediting the amount of refund to the fund, it can be paid to the applicant seeking refund, if such amount is relatable, inter alia to refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made or any notification issued under this Act The word refund is defined in the Explanation and it says that it includes rebate of duty of excise on excisable goods. Thus this section also do not talk about refund of cess after the cess st....
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....erved as follows: "11. ......In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed, it cannot import provisions in the statutes so as to supply any assumed deficiency." 5.8 This Tribunal also in the case of Steel Strips Ltd. Vs. Commissioner of Central Excise, Ludhiana reported as 2011 (269) E.L.T. 257 (Tri.) has held that no equity or good conscience influence fiscal codes without the same being embodied to statutory provisions. The Larger Bench of this Tribunal also held that the plea of injustice or hardship cannot be raised to claim a refund in the absence of statutory mandate. This decision was dealt with by Hon'ble High Court of Mumbai in the case of Gauri Plasticulture Pvt Ltd. (supra) wherein it was held that Rule 5 of CCR, 2004 is related to manufacture in the sense that where any input or input service is used in the manufacture of final product which is cleared ....
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....015 the Cenvat has taken on or after 01.03.2015 of EC @ 2% and SHEC @ 1% to be utilized for payment of duty of excise. But in the present case the Cenvat of Cess paid prior March, 2015 was never taken till the onset of CGST Act on 01.07.2017. 5.10 Coming to the transitional provisions of CGST Act, 2017 much emphasized by the appellant, I observe that transitional arrangement for input tax credit is given under Section 140 of CGST Act. This section comprises of 10 sub-sections and explanations 1, 2 and 3 thereafter. 5.11 The Explanation 1 refers to Sub- sections (1), (3), (4) and (6), because these four Sub-sections use and employ the term "Eligible Duties" and Explanation 1 confines "Eligible Duties" to 7 specified duties under that Explanation 1, namely Additional Excise Duty under Additional Duties of Excise (Goods of Special Importance) Act, 1957, Additional Duty under Custom and Tariff Act, 1975, Additional Custom Duty on Taxable Articles, Duty of Excise in the First Schedule to the Central Excise Tariff Act, 1985 and National Calamity Contingency Duty under Section 136 of the Finance Act, 2001, etc. Therefore, only the seven specified duties in respect of inputs held in stoc....
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....emoval of any doubt, it further clarified that such eligible duties and taxes will exclude any Cess which has not been specified in Explanations 1 and 2. But, as noted above, the imposition or levy of Education Cess and Secondary and Higher Education Cess and Krishi Kalyan Cess did not operate after 01.07.2017. Explanation 3, in our opinion, specifying that any kind of Cess will be excluded for the purpose of Section 140, makes the intention of the Legislature very clear and Sub-section (8) of Section 140, which was emphasized by the learned counsel for the appellant, is not excluded from the effect and operation of Explanation 3 of Section 140 of GST, Education Cess and Secondary and Higher Education Cess and Krishi Kalyan Cess are not included in Explanations 1 and 2 at all. The Departmental Circular dated 02.01.2019 with respect to clarifications regarding Section 140(1) of CGST Act, 2017, has rightly clarified this position with reference to Explanation 3 to Section 140 of the Act. 5.15 The above discussion is sufficient to hold that transitioning in the Electronic Credit Ledger, the amount of such Education Cess and Secondary and Higher Education Cess, does not entitle appell....