2023 (2) TMI 1297 - CESTAT MUMBAI

Refund in cash - refund claim in respect of the CVD and SAD paid for regularization of imports subsequent to introduction of GST regime - Shortfall in the fulfillment of export obligation - absence of specific legal provision under Section 142(3) of the CGST Act, 2017 read with Section 11B of the Central Excise Act, 1944 to grant refund - HELD THAT:- Admittedly the CVD and SAD against which the appellant have filed these refund claims were paid during the months of April and May 2018. On the date of payment of duty there was no scheme of CENVAT Credit in vogue. Neither the amount for which the appellants are seeking the refund claim was in dispute before any authority, tribunal or court of law. The amounts sought as refund was paid by the appellant as directed by the DGFT for the redemption of the Advance Authorizations issued to the appellant. Admittedly appellant failed to fulfill the export obligations as per the advance authorizations issued to them within the stipulated time of eighteen months from the date of advance authorization.

It is well evident that on the date of challan evidencing the payment of duty against which the appellants claim the CENVAT Credit, is after 1st July 2017, the date when the CENVAT Credit Scheme was rescinded. In absence of any scheme of CENVAT Credit Scheme on the date of payment of duty as above the claim to CENVAT Credit cannot be there. Indirectly by claiming that the they are not in position to claim CENVAT Credit, appellant has sought for the refund of the duties paid by them for nor non fulfillment of the obligation under advance authorization issued to them.

Reliance can be placed in the case of DEVENDRA KUMAR VERSUS STATE OF UTTARANCHAL & ORS. [2013 (7) TMI 1115 - SUPREME COURT] where it was held that 'A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus Commodum Capere Potest De Injuria Sua Propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation.'

By the application of the principles as above well known in law and reiterated by the Hon’ble Apex Court, the argument of the appellant cannot be accepted that the refund claim made by them shall be permissible in terms of Section 142 (3) of the CGST Act, 2017 read with Section 11 B of the Central Excise Act, 1944.

The decision of Hon’ble Punjab and Haryana High Court in case of 2020 (32) GSTL 726 [2019 (11) TMI 282 - PUNJAB AND HARYANA HIGH COURT] as affirmed by Hon’ble Supreme Court in UNION OF INDIA & ORS. VERSUS ADFERT TECHNOLOGIES PVT. LTD. [2020 (3) TMI 188 - SC ORDER], is distinguishable as the said decisions is in case of non filing or incorrect filing of prescribed statutory form i.e. Tran-1 by the stipulated last date 27.12.2017, to carry forward the credit available in the book of accounts of the of the persons registered under Central Excise Act, 1944 or VAT Act. Hon’ble High Court has directed that such person may be permitted to file or correct the Tran-1 already filed by them on or before 30th November 2019. The issue in the present appeal is not in respect of any such credit which was available in the book of accounts of the appellant on the appointed date i.e. 01.07.2017. Hence the said decision cannot be applied to the facts of present case.

There are no merits in the submissions or the alternate submissions made by the appellant in support of their refund claim - appeal dismissed.