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2019 (4) TMI 1896 - AT - Central ExciseRefund of of the unutilized cesses - Education Cess - Secondary and Higher Education Cess - Krishi Kalyan Cess - rejection of refund claim of the appellant on the ground that since there was no provision to carry over the impugned cesses under the GST regime and there was no provision for refund of the same and thus such credits would lapse - Sub-rule 6(6) of the CENVAT Credit Rules 2004. HELD THAT - There is no dispute that on 01/07/2017, the cesses credit validly stood in the accounts of the assessee and very much utilizable under the existing provisions. The appellants could not carry over the same under the GST regime. Thus the appellants were in a position where they could not utilize the same. We agree with learned Counsel of the appellant that the credits earned were a vested right in terms of the Hon ble Apex Court judgement in Eicher Motors case and will not extinguish with the change of law unless there was a specific provision which would debar such refund. It is also not rebutted by the revenue that the appellants had earned these credits and could not utilize the same due to substantial physical or deemed exports where no Central Excise duty was payable and under the existing provisions, had the appellants chosen to do so they could have availed refunds/ rebates under the existing provisions. There is no provision in the newly enacted law that such credits would lapse. Thus merely by change of legislation suddenly the appellants could not be put in a position to lose this valuable right. Following the judgement of Hon ble Karnataka High Court in the case of UNION OF INDIA VERSUS SLOVAK INDIA TRADING CO. PVT. LTD. 2006 (7) TMI 9 - KARNATAKA HIGH COURT , it can be held that the assessee is eligible for the cash refund of the cessess lying as cenvat credit balance as on 30/06/2017 in their accounts. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Eligibility of refund for unutilized cesses (Education Cess, Secondary and Higher Education Cess, and Krishi Kalyan Cess) under the new GST regime. 2. Validity of the appellant's claim based on vested rights to Cenvat credit. 3. Applicability of past judicial precedents to the current case. Issue-wise Detailed Analysis: 1. Eligibility of Refund for Unutilized Cesses: The appellant, engaged in manufacturing electrical and mechanical equipment, had accumulated unutilized credit balances of various cesses due to their products being exempt from duty under the CENVAT Credit Rules 2004. With the introduction of the GST regime on 1st July 2017, these cesses were abolished, rendering the accumulated credits unutilizable. The appellant filed for a refund of these unutilized cesses, but the adjudicating authority rejected the claim on the grounds that there was no provision under the GST regime for carrying over or refunding these cesses, leading to their lapse. The appellant's subsequent appeal was also rejected by the Commissioner (Appeals). 2. Validity of the Appellant's Claim Based on Vested Rights to Cenvat Credit: The appellant argued that the credits were validly earned and should be refunded in cash since they became unutilizable due to the transition to the GST regime. They cited several judicial precedents where courts had held that lawful Cenvat credit accumulated in an assessee's account should be refunded in cash if it becomes unutilizable due to reasons like factory closure or shifting to a duty-exempt area. The appellant emphasized that the situation was similar to these cases and that the credits were a vested right that could not be taken away by the change in law. They relied on the Supreme Court judgment in Eicher Motors Vs. UOI, which held that the right to credit becomes absolute when inputs are used in manufacturing final products, and any subsequent change in law could not affect this right. 3. Applicability of Past Judicial Precedents: The appellant cited several cases, including CCE Hyd. Vs. Apex Drugs & Intermediates Ltd., Leo Oils & Lubricants Vs. CCE Chennai-I, and Bangalore Cables P. Ltd. Vs. CCE Bangalore-III, where courts had granted refunds of unutilized credits in similar situations. They also referred to the Supreme Court's decision in Samtel India Vs. CCE, which reiterated that vested rights to credit could not be taken away by subsequent changes in law. The appellant argued that the present case was analogous to these precedents and that the credits should be refunded in cash. Decision: The Tribunal agreed with the appellant's arguments, holding that the credits earned were a vested right and could not be extinguished by the change in law unless there was a specific provision debarring such refunds. It noted that the appellant had validly earned these credits and could not utilize them due to substantial physical or deemed exports where no Central Excise duty was payable. The Tribunal found that there was no provision in the newly enacted law that such credits would lapse and that the appellant should not lose this valuable right due to the legislative change. It held that the ratio of the Apex Court's judgment in Eicher Motors and other similar cases was applicable to the appellant's situation. Consequently, the Tribunal set aside the impugned order-in-appeal and allowed the appellant's claim for a cash refund of the cesses lying as Cenvat credit balance as of 30th June 2017. Conclusion: The Tribunal concluded that the appellant was eligible for the cash refund of the unutilized cesses and set aside the order-in-appeal, allowing the appeal. The decision was pronounced in the open court.
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