2026 (4) TMI 7

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.... the ground that they would not be entitled to Cenvat credit as the provisions of chapter-V of the Finance Act,1994 which governed credit of service tax paid by a manufacturer had lapsed and GST Provisions came into force w.e.f. 01.07.2017. 1.2 Revenue issued them three show cause notices for denying refund claims filed by the appellant as per the following details alleging that there is no provision for refund of service tax paid in respect of GTA service and Manpower Recruitment Agency Service either in previous regime or under GST. Sr. No. SCN No. Date Refund amount 1. F. No-V/18-21/Refund/Div-VIII/18-19 15.11.2018 Rs. 25,303/- 2. F. No-V/18-16/Refund/Div-VIII/18-19 15.11.2018 Rs.91,634/- 3. F. No-V/18-15/Refund/Div-VIII/18-19 15.11.2018 Rs.67,126 1.3 These show cause notices were decided by the Assistant Commissioner vide three orders bearing No. 41-43/AC/Refund/2018-19/Silvassa-VII all dated 21.01.2019 wherein he rejected their refund claims. Aggrieved with these orders, the appellant filed appeals before the Commissioner (Appeals) who vide impugned order dated 22.04.2019, rejected their appeals and upheld the orders of the....

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.... avail the Cenvat credit of such duty paid by them. * Cenvat credit is a vested right of the assessee and any law cannot restrict to exercise such right. He relies on the decision of Hon'ble Supreme Court in the case of Eicher Motors Ltd Vs. UOI reported at 1999 (106) ELT 3 (SC). He also relied on the decision of Hon'ble Apex Court in the case of Samtel India Ltd Vs. Commissioner of Central Excise, Jaipur reported at 2003 (155) ELT 14 (SC). * Suppression of fact is not justified as the entire exercise was revenue neutral. The Learned Commissioner (Appeals) in para 5.4, has held that only during the course of audit, non-payment of service tax on RCM basis by the appellant came to knowledge of the department. If non-payment of service tax been in their knowledge, they would have paid it and availed the Cenvat credit. The entire exercise is therefore, revenue neutral. They rely on the following decisions: - a) Dineshchandra R. Agarwal Infracon Pvt. Ltd. Vs. CCE, Ahmedabad -2010 (18) STR 39 (Tri.-Ahmd.) b) Reliance Industries Ltd Vs. CCE & ST, LTU, Mumbai- 2016 (44) STR 82 (Tri.-Mumbai). In view of the above, they prayed for setting aside the impu....

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....isions came to conclusion that refund claims filed by the appellant merit consideration. 5.1 The relevant provisions of Section 142 (3) are as under :- "142. Miscellaneous transitional provisions - (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 provisions of existing law and any amount eventually accruing to him shall be paid in cash, 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 (1 of 1944) Provided that where any claim for refund of Cenvat credit is fully or partially rejected, the amount so rejected shall lapse : Provided further that no refund shall be allowed of any amount of Cenvat credit where the balance of the said amount as on the appointed day has been carried forward under this Act." 5.2 The relevant para 4 and 5 of the said decision are reproduced below:- "4. On reading of the above statutory pro....

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....ion of a Larger Bench of this Tribunal in Bosch Electrical Drive India Pvt. Ltd. (supra), we examine the issue on merits. We find that delayed payment of tax along with the applicable interest is permitted by the erstwhile Act. Furter for better appreciation of the law involved section 142(3) of the CGST Act, 2017 is reproduced as under; "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 to the provisions of the existing law and any amount eventually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2)." Section 2(48) of CGST Act, 2017 states as under; "Existing law means, any law, notification, order, rule or regulations relating to levy and collection of duty or tax on goods or services or both passed or made before the commencement of this Act by parliament or any authority or person having the power to make such law, notification, order, rule or regulation." ....