TaxTMI 
TaxTMI 
2024 (10) TMI 53
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....ppellant had a closing balance of Rs.46,41,212/- pertaining to Cess as on 14.08.2017, and they carried forward the Cess into the GST regime as per provisions under Section 140(1) of the Act. However with amendment in the Act w.e.f. 01.02.2019 since such cess was excluded from the category of "eligible duties", they reversed the credit and filed refund claim for the said Cess in cash under the provisions of Section 142(3) read with Section 174 of CGST Act (hereinafter referred to as the Act). The said claim was examined by the Department and was rejected on the grounds that there is no provision for transition of said Cess in the GST regime and only eligible credits were to be transitioned and the rest were to be lapsed. 3. The Original Authority also examined it's eligibility under Section 142(3) and did not find the claim eligible in view of the Larger Bench decision of Hon'ble High Court of Mumbai in the case of Gauri Plasticulture Pvt Ltd Vs CCE, Indore [2019-TIOL-1248-HC-MUM-CX-LB]. He also distinguished various case laws cited by the Appellant in support of their claim. He also countered the argument of the Appellant that the credit of Cess was a vested right as not tenable....
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....herefore, if there is no legislative intent to allow the credit or cash refund of credit or for restricted use of credit, it is well within the power of the legislature or the Government in terms of delegated legislation. Further, in the present case, the Cess is not covered within the provisions of eligible duties in terms of Explanation (1) and (2) to Section 140 of the Act and in fact, there is a clear provision under Explanation (3) to Section 140 that the expression "eligible duties and taxes" excludes any cess which has not been specified in Explanation (1) or Explanation (2) and any cess which is collected as additional duty of customs under sub-section (1) of Section 3 of the Customs Tariff Act. Therefore, the "Cess", in the facts of the case, not being an eligible cess for carrying forward would also not be entitled for refund in terms of Section 142(3) of the Act. He also points out that in terms of recent order passed by the Delhi Bench of this Tribunal in the case of M/s NMDC Ltd Vs Commissioner of CGST, Raipur [Final Order No. 55722/2024 dt.02.05.2024], the issue is now squarely covered as the Bench had gone through the entire gamut of issues concerning refund of the b....
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....and would lapse. In so far as the provision under Section 142(3) is concerned, the Original Authority has taken a stand that refund in cash in respect of said cess would not have been admissible otherwise also under the existing law as cash refunds were available only in respect of certain situations covered by Rule 5 of Cenvat Credit Rules, 2004. Therefore, since the present case of refund is not covered under the existing law i.e., Rule 5 of CCR, 2004, they would also not be entitled for refund claim under Section 142(3) of the Act. He has relied on the Gauri Plasticulture Pvt Ltd (supra) where the Larger Bench of the Hon'ble High Court of Bombay has answered the question of law - "Whether cash refund is permissible in terms of clause (c) to proviso to Section 11B(2) of Central Excise Act, 1944 where an assessee is unable to utilize credit on inputs?" in negative. Since the issue of limitation under Section 142(3) has not been explicitly taken in the impugned order and the matter has been decided on merit itself by holding that they are not eligible for refund in cash in respect of cess in terms of provision, the issue of limitation is not being taken up. 11. In so far as the ....
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....dustries [2020 (6) TMI 356 - CESTAT Hyderabad] c) Banswara Syntex Ltd Vs CCE & ST, Udaipur [2018 (10) TMI 1064 - Rajasthan High Court] d) Phoenix Industries Pvt Ltd Vs CCE, Raigad [2014 (10) TMI 677 - CESTAT Mumbai] e) Saera Electric Auto Pvt Ltd Vs CCE & ST, Gurgaon-I [2020 (8) TMI 785 - CESTAT Chandigarh] f) Idol Textile Ltd, Balaji Prints Ltd Vs CCE, Mumbai [2019 (9) TMI 16 - CESTAT Mumbai] g) Cellular Operators Association of India and Others Vs UOI & Another [2018 (2) TMI 1264 - Delhi High Court] 14. In so far as the case of Rungta Mines is concerned, the Hon'ble High Court of Jharkhand has, inter alia, examined the provisions of Section 142(3) and held that the provisions 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 provisions of CGST Act and the rules framed and notifications issued. It was also observed that Section 142(3) does not confer a new right which never existed under the old regime except to the ....
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....ticulture Pvt Ltd (supra), also examined the decision of Hon'ble Karnataka High Court in Slovak India case and, inter alia, held that the Order of Hon'ble Supreme Court in the case of Slovak India Trading cannot be read as a declaration of law under Article 141 of the Constitution of India. It is also observed that the order in Emami Cement Ltd (supra), is also based on Slovak India judgment. Appellants have also relied on Bank of Baroda (surpra), wherein, it is observed that it is Single Member Bench Order allowing claim of Cenvat credit under Section 142(6)(a) of the Act by holding that Section 140 would not determine refund of cess of KKC. This is not the issue in the present appeal where the eligibility has been examined under Section 142(3) of the Act. Appellant's reliance on the order in BHEL Vs Commissioner, CGST & CE, Kanpur (supra) is also not of much of help in view of discussion in foregoing paras that after the judgment of Larger Bench of Hon'ble Mumbai High Court in the case of Gauri Plasticulture Pvt Ltd (supra), which also examined Slovak India case, the ratio of Slovak India case would not be binding. The Tribunal in this case relied on Emami Cement case which in tu....