TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 554
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.... were informed by the said office that the application is deficient due to excess imports and they were directed to regularize the excess import by paying applicable customs duty with interest in accordance with para 4.49 of the Foreign Trade Policy. 3. In compliance with the letter and to fulfill the obligation of the said advance license, the appellant paid the applicable customs duties CVD and SAD with interest on imported goods on 18.1.2019. Since the payment was made after the implementation of GST w.e.f. 1.7.2017 and there was no provision to avail/utilize the credits on CVD & SAD paid by them on 18.1.2019, they filed a refund claim under section 142(3) ibid for refund of Cenvat credit of the CVD & SAD, in cash. 4. The said claim of cash refund was rejected by Adjudicating Authority vide Order-in-Original dated 30.1.2020 on various grounds including the ground that the CVD & SAD paid by them is not admissible as Cenvat Credit under Cenvat Credit Rules, 2004. On Appeal filed by the Appellant, the learned Commissioner (Appeals) though agreed that the CVD & SAD paid are admissible as Cenvat credit but rejected the appeal by holding that they are not eligible for cash refund u/....
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....y, paid on such duty. - (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 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 (40 of 1991), such application shall be deemed to have been m....
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....or cash refund of any amount of Cenvat credit paid under the existing law. The amount of CVD and SAD totaling Rs. 13,41,195/-paid by the appellant, on 18.01.2019 to regularize obligation under Advance Authorisation granted them prior to GST regime, was admissible to them as a Cenvat credit under erstwhile Cenvat Credit Rules, 2004 however w.e.f. 01.07.2017, GST came into force and the Cenvat Credit Rules, 2004 were no longer in existence, having been superseded by Notification No. 20/2017-CE(NT) dated 30.06.2017. Hence the appellant was not in a position to avail the Cenvat credit of such duties paid by them in absence of enabling provision and therefore they filed a claim for cash refund. There is no dispute regarding the fact that the Appellant had borne the incidence of CVD and SAD. Therefore, the bar of unjust enrichment is not attracted and the refund is legally tenable u/s 11 B(2) ibid. Although the payment of CVD & SAD had been made in the year 2019 i.e. during GST regime but it pertains to the period pre-GST i.e. prior to 1.7.2017 as the deficiency letter issued by DGFT was itself of 17.3.2017 and admittedly its credit is no longer available under the GST regime. 9. Learne....
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....d to claim such a credit. It is further not in dispute that the petitioner did not include the impugned service tax paid on "port services" in its ER-1 return and accordingly was neither entitled to include nor included the same as transitional credit in TRAN-1 under CGST Act. As per the notification (Annexure-5) extending the date of filing TRAN-1 to 31-10-2017, the same was in relation to certain service tax issues which were paid after 30-6-2017 under reverse charge basis to cover instances of bills raised on 30-6-2017 since credit is available only if the payment is made and the payment in such cases could be made only after 30- 6-2017. However, in the instant case the bill was admittedly generated on 23-5-2017, services availed and bill amount including service tax was paid in April, 2017 but the original bill did not reach the petitioner for unknown/undisclosed reasons. 51. It is apparent from the impugned orders that the specific case of the respondent is that the petitioner had claimed Cenvat credit under ST-3 return thereby treating the services involved in the present case as their input services used for providing output service, whereas they are not output service pro....
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....ld to be not entitled to refund under Section 142(3) of CGST Act by the impugned orders." 11. In the instant matter the cash refund is claimed because CENVAT credit could not be availed during pre-GST period as stated earlier. The issue involved herein is no more res integra in view of number of decisions of this Tribunal. A co-ordinate Bench of the Tribunal in the matter of Mithila Drugs Pvt Ltd. v. Commissioner, Central Goods and Service Tax; (2023) 11 Centax 338 (Tri.-Del.) decided the identical issue in favour of the assessee, the relevant portion whereof is extracted hereunder:− " 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 30.06.2017 is not disputed under the advance authorisation scheme. It is also not disputed that the appellant have paid the CVD and SAD in August, 2018 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 f....
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....attracted as the appellant have admittedly paid service tax in August, 2018 out of their own pocket. Accordingly, I allow this appeal and set aside the impugned order. The adjudicating authority is directed to grant refund within a period of 60 days from the date of receipt of copy of this order along with interest under section 11BB of the Central Excise Act. " [Emphasis supplied] 16. I find that the ratio laid down in the above case law is also squarely applicable to the facts of the present case. 17. Now coming to the case law of Servo Packaging Ltd and Aurobindo Pharma Ltd cases, cited by learned AR, subsequently Chennai Bench itself has passed another Order holding that Appellant would be eligible for cash refund. Further, the view of the Bench in the cases of Servo Packaging Ltd & Aurobindo Pharma Ltd were prior to the clear view brought in by the Larger Bench in the case of Bosch Electrical Drive India Pvt Ltd (cited supra), which has held as under: "49. In the present case, the service tax was paid under the provisions of Chapter V of the Finance Act and refund was claimed under sub- section (3) of section 142 of the CGST Act, under which the claim was required to be ....