TaxTMI 
TaxTMI 
2025 (9) TMI 752
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....tion No. AABCA5297MST001. 2.2 An audit of the appellant was conducted by the Department on 15.11.2017 and 18.11.2017 for the financial years 2013-14 to 2016-17, wherein certain discrepancies were noticed with regard to the payment of service tax under RCM. The appellant, pursuant to the audit findings deposited Rs. 8,55,338/ towards service tax under Reverse Charge Mechanism. As per the appellant, they are entitled to avail credit of service tax paid under RCM pursuant to audit findings. The said credit however remained un-availed due to transition to the goods and service tax, (CGST regime); thereafter the appellant filed a claim for refund of service tax paid under RCM. After following the due process, the adjudicating authority vide order dated 09.03.2020 rejected the refund claim on the ground that erstwhile provision did not contain any provision permitting refund of service tax paid under RCM. Aggrieved by the said order dated 09.03.2023, the appellant preferred an appeal before the Commissioner (Appeals) who dismissed the same vide the impugned order dated 22.03.2020. Hence, the present appeal. 3. Heard both the parties and perused the material on record. 4. The lea....
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..... Commissioner of Central Tax, Kolhapur 2025 (7) TMI 554-CESTAT Mumbai. The leaned counsel further submits that some of the decisions cited (Supra) have been rendered by the Division Bench of the Tribunal and has a binding precedential value. He further submits that the Tribunal should invoke the Doctrine of Necessity in the present case to direct grant of refund under Section 142(3) of CGST, Act 2017 and render complete justice to the appellant. 4.3 The learned counsel also refer to the some of the decisions wherein the Hon'ble Supreme Court and various High Courts have, in a catena of judgements, acknowledged that where the exigencies of the situation leave no lawful alternative, the doctrine permits actions otherwise impermissible, provided such actions are bona fide, proportionate to the necessity and accordingly directed the protection of larger public interest or the preservation of the integrity of legal and administrative systems. 5. On the other hand, learned authorized representative reiterated the findings of the impugned order and further submits that there was no provision under the existing law to grant refund of credit in respect of service tax paid under RC....
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....ELT 550 (Tr-Chennai) • CESTAT Hyderabad decision dated 04.09.2024 in the case of M/s. M/s NACL Industries Ltd.. • CESTAT Mumbai decision dated 20.02.2024 in the case of M/s Swati Menthol & Allied Chemicals Ltd 6. I have considered the submissions of both the parties and perused the material on record, I find that the only issue involved in the present case is whether the appellant is entitled for refund in cash in respect of the service tax paid by the appellant under RCM in view of the provision under Section 142(3) read with Section 174(2)(c) of the CGST, Act, 2017. Further, I find that it is not the dispute that the service tax was paid when the audit raised the objection after the coming into force of GST with effect from 01.07.2017. As per the appellant, they are entitled for cash refund as their right of refund has been protected under Section 174(2)(C) of CGST, Act. For this submission also, the learned counsel for the appellant has relied upon the various decisions cited (Supra). 7. On the other hand, learned authorized representative has also relied upon the certain decisions cited (Supra), where identical issue has been discussed and decide....
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....ions of Sub-section 2 of Section 11B. Therefore, it is obvious that refund has to be examined first in terms of the relevant provisions, as it existed under the existing law, in this case Cenvat Credit Rules, 2004 or the Finance Act 1994. 10. The perusal of CCR under the existing law clearly brings out that the refund of unutilized cenvat credit can be made only for specific purpose under Rule 5, 5SA and SB, subject to certain prescribed/notified procedure, conditions and limitations etc., as may be specified or notified by notification. Also, it is obvious that there is no provision for refund of CENVAT credit either under CCR 2004 or Finance Act 1994 for service tax paid correctly, which in any case has not been disputed by the appellant. They have also admittedly not filed any revised ST-3 within the specified tax limit as would have been otherwise required under Section 142(9)(b). 11. Therefore, it is obvious that the nature of refund being sought in this case would not get covered in any one of these situations when there is no provision for refund of such cenvat credit or tax under existing law and I find much force in the argument of the Learned DR that Sec....
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....r under the Cenvat Credit Rules 2004 or in the Finance Act 1994 to allow cash refund, for such accumulated credit, Section 142(3), per se, cannot make it an eligible refund merely because the appellant have not been able to utilize on the ground of not having filed the revised return or were not able to take the TRAN-1 route etc., within specified time. I also observe that in the case of Banswara Syntex Vs CCE [2018 (91) TMI 1064], the Hon'ble Division Bench of Rajastan High Court held that refund of accumulated unutilized credit on account of education cess and secondary and higher secondary education cess was not entitled for cash refund in view of their having no provision under the Act of 1944. 14. Further, I also find that the issue of the scope of Section 142(3) of the Act came up before Hon'ble Jharkhand High Court in the case of M/s Rungta Mines Vs. CCE, Jamshedpur [2022-TIOL-252-HC-Jharkhand-GST]. In this case Hon'ble High Court, interalia, held that the provision of Section 142(3) does not entitle a person to seek refund where no such rights occur under the existing law or new CGST regime in terms of provision of CGST Act and the rules framed and noti....