2025 (7) TMI 1412

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....riginal of Assistant Commissioner, Mumbai. 2. The issue involved herein whether there is any bar for refund of the unutilized Education Cess (EC), Secondary and Higher Education Cess (SHEC) and Krishi Kalyan Cess (KKC) in terms of section 140  (1) CGST Act,2017 after the retrospective insertion of Explanation 3 to Section 140 ibid? 3. The facts leading to filing of appeal are in brief as follows. The appellants were engaged in providing various taxable services and were availing Cenvat Credit of Education Cess, Secondary & Higher Education Cess and Krish Kalyan Cess on input services in accordance with provisions of Cenvat Credit Rules, 2004. Their closing balance of unutilized cenvat credit of aforesaid cesses as on 30.06.2017 was R....

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....imary basis for the rejection of Appeal, as seen from the impugned order, is the introduction of amendments in Section 140 ibid. The said amended Section 140 ibid reads as under: - "140. Transitional arrangements for input tax credit. - (1) A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, the amount of CENVAT credit 1[of eligible duties] carried forward in the return relating to the period ending with the day immediately preceding the appointed day, furnished by him under the existing law in such manner as may be prescribed : Provided that the registered person shall not be allowed to take credit in the following circumstances, namely :- (i) where th....

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....xcise leviable under section 3 of  the Additional Duties of Excise (Goods of Special Importance) Act, 1957; (ii) the additional duty leviable under sub-section (1) of section 3 of the Customs Tariff Act, 1975; (iii) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act, 1975; (iv) [...] (v) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985; (vi) the duty of excise specified in the Second Schedule to the Central Excise Tariff Act, 1985; (vii) the National Calamity Contingent Duty leviable under section 136 of the Finance Act, 2001; and (viii) the service tax leviable under section 66B of the Finance Act, 1994, in respect of inputs and input servi....

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....endment Act, 2018 which shall become effective retrospectively.  8. It is interesting to note that Explanation 3 although has been inserted in section 140 ibid retrospectively by virtue of section 28 of Central Goods and Services Tax (Amendment) Act, 2018 which specifically referred to Explanation 1 and 2 and the said Explanation 1 and 2, as per the amendment, included therein sub-section (1) of section 140 while elaborating the meaning of 'eligible duties' and 'eligible duties and taxes', but the said amendment introduced in Explanations 1 and 2 to section 140(1) ibid have been kept in abeyance and have not yet been notified. 9. This Explanation 3 inserted through Amendment Act, 2018 was relied upon to contend that cesses such as Ed....

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....issue, after taking into consideration decisions of the various High Courts and Tribunal viz. Brand Equity Treaties Ltd. vs.Union of India;2020 (38) G.S.T.L.10 (Del.), Gauri Plasticulture (P) Ltd. vs. Commissioner of Central Excise, Indore;2019 (30) G.S.T.L.224 (Bom.), International Seaport Dredging Pvt.Ltd. vs. Commissioner of GST & Central Excise (Appeals-I), Chennai; (2022) 140 taxmann.com 207 (Chennai-CESTAT), Mylan Laboratories Ltd. vs. Central Tax and Customs, Guntur;2020-TIOL-576-CESTAT-HYD, Nu Vista Ltd. vs. Commissioner (Appeals), CGST, Central Excise, Raipur;2022 (381) ELT 681 (Tri.-Del.), Rungta Mines Ltd. vs. Commissioner of Central Goods and Services Tax and Central Excise, Jamshedpur;2022 (67) G.S.T.L.180 (Jhar.); Schlumberger....