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2024 (2) TMI 1375 - AT - CustomsGST regime - Goods for manufacture and export - export obligation - Whether vide impugned Order-in-Appeal the Commissioner (Appeals) have rightly rejected the refund of CVD SAD paid for regularisation of Advance License (Import License), which have been deposited after 01.07.2017 in relation to imports prior to 01.07.2017 - HELD THAT - We find that the payment of CVD and SAD subsequently during the GST regime, for the imports made under advance authorisation prior to 30.06.2017 is not disputed. It is also not disputed that the Appellant have paid the CVD and SAD during the period August 2018 to March 2019, by way of regularisation of the shortfall in fulfilment of export obligation. We find that Section 142(3) read with 142(5) of the GST act, provides that every claim for refund 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 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 provision of sub-section (2) of section 11B of the Central Excise Act (unjust enrichment). Further from a conjoint reading of subsection (3) (5) and (8A) of Section 142 of the CGST Act it is evident than that an assessee is entitled to claim refund of CVD and SAD paid after the appointed day, under the existing law, and such claim has to be disposed of according to the provisions of the existing law. As the Appellant was admittedly entitled to Cenvat credit of the said amount of Rs. 3,28,75,733/-, which is now no longer available due to implementation of GST regime, it is held that they are entitled to refund of the said amount. Thus, we allow this appeal and set aside the impugned order. Appeal allowed
Issues involved:
The appeal concerns the rejection of a refund claim for CVD + SAD paid for regularisation of Advance License post-GST implementation, related to imports made before the GST regime. Issue 1 - Refund of CVD + SAD under GST Regime: The appellant imported duty-free inputs under Advance Authorisation pre-GST, later paid CVD + SAD due to non-fulfilment of export obligation. They sought a refund under Section 142(3) of the CGST Act, as they were unable to avail input credit post-GST implementation. Issue 2 - Jurisdiction and Eligibility for Refund: The Revenue contended that the Adjudicating Authority lacked jurisdiction to entertain the refund claim, as it was not an instance of excess/erroneous duty payment. The Order-in-Original rejected the refund claim, emphasizing the absence of provisions pre-GST allowing cash refund for cenvatable components. Issue 3 - Legal Precedents and Appellate Tribunal Decisions: The appellant cited the Bosch Electrical Drive India case where it was held that refund claims under Section 142(3) were the appropriate recourse for amounts previously available under Cenvat. The Tribunal's consistent stance on eligibility for Cenvat Credit in similar cases supported the appellant's position. Issue 4 - Applicability of Transitional Provisions: The Tribunal referred to Section 142(3) of the CGST Act, emphasizing that refund claims post-GST implementation must align with existing laws. This provision mandated the disposal of refund claims in accordance with pre-GST legislation, ensuring continuity in appellate procedures. Issue 5 - Rulings and Interpretations: The appellant relied on various rulings and decisions to support their claim for cash refund of CVD + SAD paid post-GST. The Tribunal considered the provisions of Section 142(3) and related legal precedents to uphold the appellant's entitlement to the refund. Conclusion: The Tribunal allowed the appeal, directing the Adjudicating Authority to refund the claimed amount within a specified timeline, along with interest. The decision was based on the interpretation of Section 142(3) of the CGST Act and the appellant's entitlement to refund under the existing legal framework.
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