2025 (9) TMI 121

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....ing manufacturer in the said advance licenses. In terms of the Advance Authorization scheme, the Appellant was required to fulfill export obligation. At the time of redemption of some of the Advance Authorizations, it was observed that there was a shortfall in the fulfillment of export obligations. Accordingly, the Principal manufacturer paid the amount of customs duty (including CVD) forgone on the quantities of duty-free imported raw material proportionate to the shortfall in the fulfillment of export obligation. Thus, the Principal manufacturer discharged CVD amounting to Rs. 18,10,749/-. The Appellant also produced certificate from principal manufacturer stating that they have no objection if the Appellant avail credit of said CVD. Under the erstwhile regime i.e., prior to 01.07.2017, the Appellant was entitled to avail Cenvat credit of CVD paid for regularization of unutilized duty-free inputs imported against the Advance Authorization in terms of Rule 3 read with Rule 9 of the Cenvat Credit Rules CCR. However, post implementation of GST (w.e.f. 01.07.2017), there is no specific provision for availing credit of CVD paid post 01.07.2017. In view of transitional provision i.e., ....

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....hstanding 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." In terms of the aforesaid provision, a refund claim of any amount of Cenvat credit paid under the 'existing law' must be disposed of as per the 'existing law' and any amount accruing to the assessee thereof must be refunded in cash. On perusal of Section 2(48) of the CGST Act, which defines existing law, it is clear that CCR and CEA falls within the scope of 'existing law'. Learned Advocate further submitted that in terms of the explanation to Section 142 of the CGST Act, the expression 'Central Value Added Tax (CENVAT) Credit' has the same meaning as assigned to it under the CEA or the rules made thereunder. Therefore, CVD discharged by the Appellant partakes the nature of 'Cenvat credit' even for the purpose of Section 142(3) and any claim of refund of such Cenvat credit shall be disposed in accordance with provisions of existing law. Learned Advocate further submitted that the Appellant is entitled to take Cenvat credit on the CVD paid. Hence, the amount of Cenvat credit that accrues to the Appellant in t....

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....urer and incidence is not passed on to another person. Duty is required to be given to the said manufacturer. Thus, the instant case is squarely covered under clause (c) and (d) and bar of unjust enrichment is not applicable to the present case. Further, I find that the Appellant had also submitted CA certificate to certify that the burden of duty has not been passed on. I find that as per the decision of Eicher Motors Vs. CCE-1999 (106) E.L.T. 3 (SC), it was held that the Cenvat credit is nothing but an advance tax paid till the adjustment of the same in future liability. The instant case is squarely covered under clause (d) and therefore, reference to Rule 5, 5A and 5B of CCR, as per clause (c) is unwarranted. I find that the disputed refund application is filed by the Appellant under Section 142(3) of CGST Act, 2017 and not under Section 11B of CEA, 1944. Section 142(3) of CGST Act, 2017 only provides for applicability of Section 11B(2) only for the portion of 'unjust enrichment'. The following judgements are directly applicable to the present case consistently holding that assessee is eligible for refund of credit of CVD paid after 01.07.2017 for regularization of import un....

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....ernational Pvt. Ltd. Vs. Ast. CGST 2022 (3) TMI 544-MADRAS HIGH COURT. ii) OSI Systems Pvt. Ltd. Vs. CCE 2022 (9) TMI 801 - (T). iii) Circor Flow Technologies India Pvt. Ltd. Vs. CGST & CE 2021 (12) TMI 675-(T). iv) Jagannath Polymers Pvt. Ltd. Vs. CCGST 2021 (12) TMI 736-(T). v) Final Order No. A/85080-85081/2023 dated 30.01.2023 passed by CESTAT, Mumbai in case of Maloo Infraspace. 9. I further find that Section 174(2) (c) of the CGST Act provides that repeal of the erstwhile enactments will not affect any right, privilege, obligation, or liability acquired, accrued or incurred under the repealed Acts. Therefore, the savings clause under Section 174(2)(c) of the CGST Act which provides for saving of the rights accrued under the repealed law covers CCR as well. Since the CVD was discharged by the Appellant in relation to imports made prior to GST, the right of the Appellant to claim Cenvat credit in terms of Rule 3 of the CCR is saved by operation of Section 174(2) of the CGST Act. Further, when the levy/liability of CVD is saved, the right to claim credit on the payment of CVD would also get saved. Hence, although the payment of CVD was made when the existing law i.e., C....