TaxTMI 
TaxTMI 
2025 (8) TMI 1397
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....ABCB2242F1Z6. The appellants avail CENVAT credit of duty/tax on inputs and input services used in such manufacture of final products as per CENVAT Credit Rules, 2004 (CCR of 2004). 2.3 The Department had denied CENVAT Credit involved in certain input services by issuing various Show Cause Notices (SCNs) and statement of demands for the period starting from November, 2012 to May, 2015. The disputed input services were Goods Transport Agency (GTA) service, Custom House Agent (CHA) service, Clearing and Forwarding (C&F) services, Courier services and Logistics & Supply chain services. While the dispute was ongoing in various SCNs, the appellants had paid an amount of Rs.17,81,118/- through CENVAT vide entry No. 1647 dated 16.12.2013 at the time of audit conducted by the Department. In adjudication of the above dispute, the original authority had issued an Order-in-Original dated 17.03.2016, confirming the entire demand of Rs.53,58,640/-. Being aggrieved with the above order, the appellants had filed an appeal before the Commissioner (Appeals), who vide order dated 28.12.2017 had allowed the appeal to the extent of setting aside the demand of CENVAT Credit for Rs.11,98,235/- attribu....
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.... Rules, 2004 relevant to the dispute are extracted and herein given below for ease of reference: Central Goods and Services Tax Act, 2017 "Miscellaneous transitional provisions. Section 142. (1) Where any goods on which duty, if any, had been paid under the existing law at the time of removal thereof, not being earlier than six months prior to the appointed day, are returned to any place of business on or after the appointed day, the registered person shall be eligible for refund of the duty paid under the existing law where such goods are returned by a person, other than a registered person, to the said place of business within a period of six months from the appointed day and such goods are identifiable to the satisfaction of the proper officer: Provided that if the said goods are returned by a registered person, the return of such goods shall be deemed to be a supply. xxx xxx xxx xxx (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 prov....
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....eemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act : Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. Explanation.- Omitted by the Finance (No. 2) Act, 1980. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) rebate of duty of excise on excisable goods exported o....
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....rdance with the provisions of the existing law. Therefore, even if the service tax had been deposited by the appellant after 01.01.2017, nonetheless the refund of any amount of the CENVAT credit could be claimed only under subsection (3) of section 142 of the CGST Act and against this order an appeal will lie to the Tribunal. 50. The reference is, accordingly, answered in the following manner: An appeal would lie to the Customs, Excise & Service Tax Appellate Tribunal against an order passed under section 142 of the Central Goods and Services Tax Act, 2017." Thus, it could be seen that the Larger Bench of the Tribunal has held that this Tribunal is the appropriate appellate forum for preferring an appeal against an order passed under Section 142 of the CGST Act, 2017. 6.1 From the facts of the case, it is seen that the appellants had duly followed the procedure and conditions prescribed in complying with the obligations under Cenvat Credit Rules, 2004, in taking credit of input and had also complied with for payment of duty/CENVAT credit in their periodical returns with the department. 6.2 The main ground on which the refund application of the appellants was held ....
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....lfilment of unjust enrichment angle in the case of the present refund, the appellants had produced a certificate from the Chartered Accountant and the same has been examined by the first appellate authority with respect to whether the incidence of excess duty paid has been passed on by the appellants to any other person or not. On finding that such amount was expensed off in the profit and loss account for the year 2017-18, learned Commissioner (Appeals) had rejected the claim for refund. However, I find that the appellants have stated that the said amount has been paid under protest and also submitted the Chartered Accountant Certificate explaining that the said amount of Rs.7,69,532/- claimed as refund has not been passed to any other person along with copy of their books of accounts. I also find that the learned Counsel had relied upon the judgement of the Hon'ble Supreme Court in the case of Commissioner of Central Excise Vs. I.T.C. Bhadrachalam - 2015 (319) E.L.T. 547 (S.C.) to state in case where duty paid under protest and the assessee not having passed on the incidence of such duty burden to the ultimate consumer, enable that appellant in that case eligible for refund. Ther....
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....r, I find that the Hon'ble Bombay High Court had an occasion to examine identical issues in a similar matter before them, in the case of Combitic Global Caplet Pvt. Ltd. Vs. Union of India in Writ Petition No.729 of 2021 with W.P. No.1228 of 2021, and being jurisdictionally binding on this Regional Bench of the Tribunal, I would like to be guided by such judgement delivered recently. In the judgement delivered on 10.06.2024, the Hon'ble Bombay High Court have held that Sub-section (3) of Section 142 of the CGST Act very clearly states that any amount eventually accruing shall be paid in cash and directed the departmental authorities/ sanctioning authority for refunding the amount of duty refundable to the petitioner in cash instead of credit in CENVAT account. The relevant paragraphs of the said judgement of the Hon'ble Bombay High Court are extracted and given below: "8 It is these orders which are impugned in this petition and the stand taken by petitioner is that Section 142(3) of the Central Goods And Services Tax Act 2017 (the Act) clearly says, w.e.f 1st July 2017, in view of the effect of change in the regime, i.e., when the GST regime was introduced, any refund tha....
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....ted that an amount of Rs.10,48,11,737/- is refundable to petitioner. The credit of refund is the only issue because Mr. Adik, as an officer of this court and in fairness, agreed that Government cannot retain any amount without any authority of law. 12 Sub-Section (3) of Section 142 of the Act very clearly says "any amount eventually accruing shall be paid in cash". In the circumstances, we are of the opinion that respondents ought to have directed the sanctioning authority to refund the amount of duty refundable to petitioner in cash instead of credit in CENVAT account, 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. 13 Therefore, Rule made absolute in terms of prayer clauses (a) and (b) of both petitions, which are quoted above. 14 The amount shall be paid together with accumulated interest in accordance with law within four weeks of this order being uploaded." 8.3 In this regard, I find that Hon'ble Supreme Court have held in the case of Union of India Vs. Kamlakshi Finance Corporation Limited - 1991 (55) E.L.T....