TaxTMI 
TaxTMI 
2025 (5) TMI 477
X X X X Extracts X X X X
X X X X Extracts X X X X
..... AACCS4955RXM002; and upon transition into GST regime, the appellants factory at Nagpur was holding GSTN No. 27AACCS4955R1ZJ. The appellants avail CENVAT credit of duty/tax on inputs, capital goods and input services used in such manufacture of final products. The appellant had filed a refund application in the prescribed Form-R dated 28.03.2019 for refund of Rs.9,96,439/- being the credit of Additional duties of Customs/Countervailing Duty (CVD), Special Additional Duty of Customs (SAD) and Education Cess and Secondary & Higher education cess. These duties have been paid by the appellants vide challans dated 29.05.2018, 14.06.2018 and 04.09.2018, consequent to cancellation of export orders and resultant non-fulfillment of export obligation in respect of imports through Advance License, thereby necessitating payment of duty foregone at the time of import of machines under such Advance License, as authorised and certified by the Customs authorities at Nagpur. As these duties paid could not be transitioned as input credit under GST regime, the appellants had filed refund claim on 06.10.2018 with the jurisdictional Assistant Commissioner of Customs at Nagpur, who had directed them vi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eir cancellation of export orders, and as per the advice of the DGFT authorities for redemption of export obligation in respect of imports through Advance Licenses, they had paid the duties of customs and additional duties of customs, education Cess and Secondary Higher Education Cess as required under the law. As these payment of duties were made during 2018, after coming into effect of the GST regime, the admissible credit amount of Rs.9,96,439/- could not effectively be carried forward as input credit to GST regime, and hence they had applied for refund of the same before the jurisdictional authorities. However, their request for refund was rejected by the various authorities below, who had dealt with the matter. 3.2 Learned Advocate stated that it is not in dispute that additional duty leviable under Section 3 of the Customs Tariff Act, 1975 (CVD) which is equivalent to the duty of excise, Education Cess & Secondary Higher Education Cess leviable was available as CENVAT credit under the provisions of the CENVAT Credit Rules, 2004. With advent of GST, the appellants though had paid the applicable duty as above, could not utilize credit of CVD, Education Cess & Secondary Highe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....AR) appearing for Revenue, reiterated the findings made by the Commissioner (Appeals) in the impugned order and submitted that in view of the specific provisions for refund of CENVAT credit provided under Rule 5 of the CCR, the appeal for refund of CENVAT credit of CVD and Education Cess & Secondary Higher Education Cess in cash under Section 11B ibid, is not permissible. In this regard, he relied upon the order of the Hon'ble High Court of Jharkhand at Ranchi in the case of Rungta Mines Limited Vs. Commissioner of CGST & Central Excise, Jamshedpur - 2022 (67) G.S.T.L. 180 (Jhar.) and order of the Tribunal in the case of Servo Packaging Limited Vs. Commissioner of CGST & Central Excise, Puducherry - 2020 (373) E.L.T. 550 (Tri. - Chennai). Accordingly, he submitted that the impugned order is sustainable in law and prayed for rejection of the appeal filed by the appellants. 5. Heard both sides and perused the case records. The additional submission made in the form of written paper books in this case, by both sides, were also perused carefully. 6. The short issue for determination before the Tribunal is to decide, as to whether or not, the Additional duties of Customs/Cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pointed day has been carried forward under this Act. xxx xxx xxx xxx (6) (a) Every proceeding of appeal, review or reference relating to a claim for CENVAT credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of existing law, and any amount of credit found to be admissible to the claimant shall be refunded to him in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of subsection (2) of section 11B of the Central Excise Act, 1944 (1 of 1944) and the amount rejected, if any, shall not be admissible as input tax credit under this Act: Provided that no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act; (b) Every proceeding of appeal, review or reference relating to recovery of CENVAT credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of existing law and if any amount of credit becomes recoverable as a r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the repealed Acts) are hereby repealed....." Central Excise Act, 1944 "Claim for refund of duty and interest, if any, paid on such duty. Section 11B. (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vice shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of- (i) the duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act: xxx xxx xxx xxx (vi) the Education Cess on excisable goods leviable under section 91 read with section 93 of the Finance (No. 2) Act, 2004 (23 of 2004); (via) the Secondary and Higher Education Cess on excisable goods leviable under section 136 read with section 138 of the Finance Act, 2007 (22 of 2007); xxx xxx xxx xxx (vii) the additional duty leviable under section 3 of the Customs Tariff Act, equivalent to the duty of excise specified under clauses (i), (ii), (iii), (iv), (v), (vi) and (via);...." 8.1 Before I proceed with the present case in hand, the competency of the Tribunal in handling the orders passed under Section 142(2) of the CGST Act, 2017 in appeal before them, has been dealt by the Larger Bench of the Tribunal, and the reference made therein have been clarified in the Interim Order No. 40021/2023 dated 21.12.2023 in the case of Bosch Electrical Drive India Private Limited Vs. Commissioner of Central Tax, Chennai.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....have been paid at the time of import of machines under such Advance License, even though these are being paid now as duty foregone. It is not in dispute that the additional duties of customs equivalent to the duty of excise, Education Cess & Secondary Higher Education Cess leviable on the imported goods was available as CENVAT credit under the provisions of the CENVAT Credit Rules, 2004. Post introduction of GST regime, CVD on imported article is presently charged as Integrated Goods and Service Tax (IGST) which is levied under Section 5 of the IGST Act, 2017 and collected in terms of Section 3(7) of the Customs Tariff Act, 1975 and the same is allowed as input duty credit Section 16(1) of CGST Act, 2017. 9.2. Further, the fact on record as evidenced by Challans No. 5411 dated 29.05.2018; No. 5419 dated 14.06.2018 and No.5532, No.5533 both dated 04.09.2028 indicate that in respect of Advance Licenses No. 0310565400 dated 19.03.2010, No.0310664441 dated 11.11.2021, No.0310562489 dated 02.03.2010 and No.0310615408 dated 10.02.2011, respectively, the appellants had paid the applicable basic customs duty, CVD, education cess, secondary education cess thereon and interest upto date o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....graphs of the original order dated 25.06.2019 are extracted and given below: "31. I find that the claimant seeks refund of duties paid by challans in July 2018 and September 2018 for redemption of advance authorization due to non fulfilling of export obligation against these advance authorization. Their contention is that Mint of CVD and SAD paid by them and that was available to them as Cenvat credit which they could not take because of the inception of GST, should be refund to them under provisions of section 142(3) of the CGST Act. 32. However Section 142(3) of the CGST Act 2017 stipulate that 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. 33. I find that the duties paid by the claimant while redemption of advance authorization are customs duties under Customs Act 1962. The customs....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... As the tax was recovered as an arrear of tax and the amount so recovered shall not be admissible as input tax credit. There is no provision to claim refund of customs duties paid by the appellant. Hence it might not be treated as refund. 24. The issue here again comes whether the Section 142(8a) of CGST Act 2017 is applicable here or otherwise. In the present issue the appellant first imported the goods under advance authorisation in the year 2012-13 with concessional rate of duty i.e first assessment of imported goods completed that time only. Thereafter since they could not fulfil the export obligation they paid the full amount of customs duty applicable in the year 2018. Thus the duty was reassessed in the year 2018 and was paid by the appellant." 9.4 On careful consideration of the impugned order passed in this case, the highlighted/bold portion seems to be disjoint to the main finding recorded in paragraph 22. Firstly, on the face of the four challans through which the disputed duty/cess have been paid clearly indicated the relevant Advance License Nos. and such licenses also carry the name of the appellants being specifically mentioned therein. Further, such paym....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in terms of Section 142(3) of the CGST Act, 2017. 10.1 In this regard, I find that the Co-ordinate Bench of the Tribunal has held in the case of New Age Laminators Pvt. Ltd. (supra) that refund of CVD and SAD paid for redemption of Advance Authorisation scheme is admissible as refund under Section 142(3) and (6) of the CGST Act, 2017. The relevant paragraphs in the said order are extracted and given below: "7. Having considered the rival contentions, I find that the payment of CVD and SAD subsequently during GST regime, for the imports made prior to 30-6-2017 is not disputed under the advance authorisation scheme. It is also not disputed that the appellant have paid the CVD and SAD in May, 2018 & May, 2019, by way of regularisation on being so pointed out by the Revenue Authority. Further, I find that the Court below have erred in observing in the impugned order, that without producing proper records of duty paid invoices etc. in manufacture of dutiable final product, refund cannot be given. I further find that refund of CVD and SAD in question is allowable, as credit is no longer available under the GST regime, which was however available under the erstwhile regime of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act;" (Underlined to emphasise) 9. It is an admitted fact of the parties that the said CENVAT Credit balance was not carried forward to the Appellant's account on the appointed date since it was not due on the said day also. Therefore, in view of clear provision contain under Section 142(6)(a) of the CGST Act, Claimant/Appellant is eligible to get the refund of credit by E/87606/2019 cash except where unjust enrichment is alleged or established against the Appellant. The Appellant is also otherwise eligible to go for availment of transitional credit through filing required forms in Tran-I as per the order passed by the Hon'ble Supreme Court on 22nd July, 2022 but in view of the observation of this Tribunal read with Section 142(6)(a) of the CGST Act that such CENVAT Credit amount shall be paid to the Appellant in cash, it can't avail dual benefits once order of this Tribunal is duly complied by the Respondent Department by the closing date of the window. THE ORDER 10. The appeal is allowed and the order passed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efund has been claimed were debited in the Cenvat credit account at the time of filing the refund claim as required under the said notification and the appellant was entitled to take recredit of the Cenvat credit. Further after going through the sub-section (3) of Section 142 of CGST Act, I find that as per the said sub-section, 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. Further it is very clear that as per sub-section (6)(a) of Section 142, every proceeding of appeal, review or reference relating to a claim for Cenvat credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of existing law, and any amount of credit found to be admissible t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w. 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.". The facts of the present case before me are entirely different from the one dealt therein, as the appellant therein M/s Rungta Mines Ltd. paid service tax on 'port services' during April, 2017 and the CENVAT credit was not taken by them, as the original invoice/bill was not received though generated on 23.05.2017. Further, M/s Rungta Mines Ltd. did not claim the service tax paid as CENVAT credit in their relevant ER-1 return and later in the TRAN-1 form brought in CGST Act, 2017. However, in the present case before the Tribunal, the appellants have paid the duty voluntarily and have claimed refund of the CENVAT credit eligible to them in terms of the provisions of CGST Act, 2017. Hence, I find that the case law cited by the learned AR does not have relevance to the present case in hand before the Tribunal. 10.6 Further, I find that the Order of the Tribunal in the case of Servo Packaging Limited (supra) relied upon by the learned AR, had come to a conclusion that the appellant could have availed the CENVAT credit of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the CENVAT regime has come to an end, credit of amount payable to petitioner to the CENVAT account would make no sense because petitioner will not get the money or credit thereof under the GST regime. Mr. Sridharan states since the government cannot retain any amount which is not due to it, the amount so collected is allowed to be paid over in cash as provided in sub Section (3) of Section 142 of the Act. xxx xxx xxx xxx 10. Section 142(3) of the Act reads as under: "142:- Miscellaneous transitional provisions :- (1) ******************* (2)******************* (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 (1 of 1944): Provided that where any claim for refund of CENVAT cr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....chnologies Pvt. Ltd. Vs. Commissioner of GST and Central Excise, Chennai - (2023) 4 Centax 304 (Tri.-Mad.) had held that since the appellant has been allowed to take re-credit and is not able to do the same due to the introduction of G.S.T., refund of the said amount in cash is permissible. Whereas the Hyderabad Bench of the Tribunal in the case of C.A.D. Vision Engineers Pvt. Ltd. Vs. Commissioner of Customs & Central Tax (Appeals-I), Hyderabad - (2024) 19 Centax 289 (Tri.-Hyd.) that when there is no provision in the law either under the Cenvat Credit Rules 2004 or in the Finance Act 1994 to allow cash refund, for accumulated CENVAT credit, Section 142(3), per se, cannot make it an eligible refund for effecting cash refund of CENVAT credit and thus the same is not admissible. I find that in these decisions the issues have not been examined in detail with respect to legislative provisions, as discussed herein above, and hence those decisions are distinguishable to this extent with the present case. 10.9 I also find that the co-ordinate Bench of the Tribunal in the case of Mayur Uniquoters Ltd., Jaipur & Others vide Final Order No. 58005- 58006/2024 dated 12.08.2024 has held that....