TaxTMI 
TaxTMI 
2024 (10) TMI 981
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is engaged in the business of Non-banking Financial Services. During the course of audit by the Audit - II Commissionerate for the period from April 2012 to June 2017, the audit raised certain objections involving non/short payment of service tax by the appellant totaling to Rs.40,13,483/- which was paid by the appellant on 18.12.2017. Out of the above amount, Rs.20,11,196/- was paid as service tax under reverse charge mechanism. The appellant submitted in their letter dated 26.9.2018 that they being a non-banking financial company, they are eligible for CENVAT credit of 50% of the amount paid as service tax. As they could neither take CENVAT credit of the same nor carry forward in TRAN-1, they wrote to the Range Superintendent for refund ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bmission for eligibility for credit, the Appellant refers to the following decisions: i. CESTAT Delhi - M/s. Asiatic Drugs and Pharmaceuticals Pvt. Ltd. Vs. Commissioner, CGST, Alwar dated 25.7.2022. ii. CESTAT Chennai - M/s. Global Analytics India Pvt. Ltd. Vs. CGST & CE, dated 22.7.2019. The Ld. C.A. further prayed that the impugned order be set aside with consequential relief. 3.2 The learned Authorized Representative stated that the refund claim was rejected because the amount paid under RCM is not admissible Rule 9(1)(bb) of CENVAT Credit Rules 2004 and was hence not eligible to be transited as input tax credit in the GST regime as stated in section 142(8)(a) of CGST Act. It was further held that the Service Tax....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., (iv), (v) and (vii) of clause (d) of sub-rule (1) or rule 2 of the Service Tax Rules, 1994." It is seen from the Rule that since tax is paid under RCM, the relevant provision is Rule 9(1)(e) ibid and not Rule 9(1)(bb), as evoked in the OIO and the impugned order and hence credit cannot be denied. In M/s Polygenta Technologies Ltd. Vs. Commissioner of Central Excise, Nasik-I (2018 (2) TMI 804-CESTAT, Mumbai) a similar matter was examined by CESTAT Mumbai. The relevant portion of the judgment is reproduced below:- "5. From the above, it is apparent that Rule 9(1)(bb) is applicable to supplementary invoice, bill or challan issued by provider of output service and Rule 9(i)(e) is applicable, inter alia, to a person liable to pay s....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "Section 142 of GST Act 2017: Miscellaneous Transitional Provisions (CHAPTER XX- TRANSITIONAL PROVISIONS) (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, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944: Provided that where any claim for refund of CENVAT credit is fully or partially rejected, the amount ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... taxable person, the same shall be refunded to him in cash under the said law. I find that in the facts of the case the amount of tax after assessment paid under RCM was not hit by the taint of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of the Finance Act or of the rules made thereunder with the intent to evade payment of service tax, as no such notice was issued to the appellant alleging the same. Hence since the duty was paid after the GST Act came into force, CENVAT Credit could not be availed in the appellants books before 01/07/2017. However, once the credit is found eligible, it is to be refunded in cash. In such a situation the appellant is eligible for refund as per s....