TaxTMI 
TaxTMI 
2025 (2) TMI 1111
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.... to June 2017 OIA CHD-EXCUS-001-LDH-APP-02-2022-23 dated 09.02.2023 CHD-EXCUS-001-LDH-APP-01-2022-23 dated 08.02.2023 OIO 07/AC/R/2020 dated 12.02.2021 06/AC/R/2020 dated 28.10.2020 SCN RFND-ST/12/2019-DIV-GST-PHG/24377/2019 dated 27.06.2019 RFND-ST/31/2020-DIV-GST-PHG dated 31.07.2020 2. Briefly the facts relating to Appeal No. 60246/2023 are that the appellant is a manufacturer of BOPP Films and was registered with the excise and Service Tax regime during pre-GST regime. Further, during the period between April 2017 and June 2017, the appellant imported goods on CIF basis, whereby the freight costs were paid by the overseas supplier to the shipping line, and it formed part of the overall transaction value of the imported goods. The appellant paid the service tax of Rs. 5,06,860/- on Ocean Freight under RCM along with delayed payment of interest during the period between August 2018 and October 2018 for the period April 2017 to June 2017 and claimed the Cenvat credit under Cenvat Credit Rules, 2004. After coming into the force of GST w.e.f. 01.07.2017; the appellant could not carry forward the Cenvat credit post-GST regime and therefore, the appellant....
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....urer importer. He further submits that any service used by the manufacturer directly or indirectly in or in relation to the manufacture of final products qualify as input service for the manufacturer. Ld. consultant also relied upon the Rule 3(1)(ixb) of the Credit Rules which allows availment of Cenvat credit of service tax leviable u/s 66B of Finance Act, 1994. He further submits that CBIC vide Para 2.4 of the Circular No. 206/4/2017-Service Tax dated 13.04.2017 has also clarified that the Importer of goods has been allowed Cenvat credit on the basis of challan of payment of service tax by the said importer on the services provided by a foreign shipping line to a foreign charter with respect of goods destined to India. 5. The Ld. consultant further submits that section 174(2) (c) of the CGST Act clearly provides that the repeal of the Central Excise Act, 1944 will not affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repealed Act. He further submits that appellant's right to claim Cenvat credit has accrued once the service tax on input services was paid under RCM, and this right is not extinguished merely beca....
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....ver, the same is subject to certain restrictions including specified eligible duties, taxes etc., in respect of which the credit can be carried forward. In this case, it is an admitted fact that the appellants had not carried forward any credit of such tax using the provisions under Section 140. 7. Learned DR further submits that specific miscellaneous transition provisions have been made under the Act itself and therefore as claimed by the appellant that they were otherwise entitled for refund under Section 142(3) of the said Act, has to be examined in terms of the provisions under the said Section and Sub-Section. He also submits that the refund claim filed under Sub-section 3 has to be disposed off in accordance with the provisions of the existing law and the Section 142(3) does not independently provide any right to claim refund of any unutilized cenvat credit without fulfillment of conditions prescribed under the existing law. In support of his submissions, learned DR relied upon the following decisions: • Jharkhand High Court decision in the case of Rungta Mines Limited [Order dated 15.02.2022] • CESTAT Bangalore order dated 28.03.2023 in the case....
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....to the relevant paras of the said order which is reproduced here in below: 9. At the very outset, it is to be understood that after the introduction of GST Laws with effect from 01.07.2017 certain transitional provisions were made so as to ensure that certain provisions of the existing law are further carried forward and claims, liability etc., under the existing laws were to be disposed off in terms of provisions made in the Act. In so far as it relates to refund of cenvat credit, there are apparently three options available post introduction of GST Laws. Firstly, under Section 140 where specific and eligible cenvat credits under existing law were entitled for being carried forward under the new regime and to be taken as credit in their electronic ledger under the Act, subject to provisions under the relevant rules and procedures. The second provision was in terms of Section 142(3) and third under Section 142(9)(b). A plain reading of the provisions would indicate that, interalia, refund of any amount of tax or cenvat credit has to be disposed off in accordance with the provisions of the existing law and any amount eventually accruing to him shall be refunded to be paid i....
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....'ble High Court of Madhya Pradesh. The other citations relied upon are in relation to substantive right to claim input credit. However, I find that these judgments are in relation to the cenvat credit and it's admissibility under the erstwhile CCR and not in relation to the entitlement of refund under Section 142 of the Act. Moreover, as pointed out by the Learned DR, Division Bench of CESTAT, Hyderabad, in the case of CCE, Tirupati Vs Rani Plastic Pipe Industries [2020 (6) TMI 356-CESTAT, Hyd] has held that there is no provision in the CCR for refund of cenvat credit if the assessee is not able to utilize it for any other purpose, such as factory being closed and that it was also held that the Larger Bench of Hon'ble High Court of Bombay had held that no refund can be sanctioned under Section 118 if the assessee is unable to utilize cenvat credit on account of closure of manufacturing activities. Similar view was also held by the Division Bench of CESTAT in the case of Finex Industries Pvt Ltd., Vs CCE, which also examined, interalia, the Judgments in the case of Union of India Vs Slovak India Trading Co. Pvt Ltd., [2006 (201) ELT 559 (Kar)) and Union of India Vs Slova....
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....or refund in cash if found entitled under the existing law as the entire claim is mandated to be dealt with as per the existing law It neither revive any right which stood extinguished in terms of the existing law nor does it create a new right by virtue of coming into force of CGST, Act. 46. Section 174 of the CGST Act read with section 6 of the General Clauses Act saves the right acquired, accrued or vested under the existing law and does not create any new right which never existed on the appointed day ile on 01.07.2017 under the existing law. 47. The argument of the petitioner by referring to second proviso to section 142(3) of CGST Act that it indicates that section 142(3) would apply to the situations where the assessee has failed to take transitional credit under section 140(1), is also devoid of any merits. The second proviso only indicates that if the assessee has taken transitional credit he will not be entitled to refund. Certainly, an assessee cannot simultaneously claim transitional credit as well as refund of the same amount. The second proviso to section 143(2) cannot be said to be an eligibility condition to claim refund but is only a conditi....