2021 (6) TMI 744 - AT - Central Excise

Refund of CENVAT Credit where the balance of the amount as on the appointed day has been carried forward/debited/reversed under this Act - proviso to Section 142(3) of CGST Act - decisions relied not applicable to the facts of the present case - HELD THAT - When the appellant filed the refund claim for the respective periods, there was no facility to debit the refund claim in ER-2 Returns after the GST Act came into force. It is also found that by the time the refund claim was filed, the appellant had already carried forward the closing balance of credit as on 30.06.2017 through TRAN-1. Further, it is found that since no Return in ER-2 could be filed under GST Law and the appellant in order to satisfy the debit condition under Para 2(h) of the Notification No.27/2012, debited the refund claim amount in GSTR-3B in respective month, in fact, the credit was reversed under GST Law at the time of filing refund claim. An identical issue has been considered by the Tribunal in the case of M/S. GLOBAL ANALYTICS INDIA PVT. LTD. VERSUS THE COMMISSIONER OF G.S.T. CENTRAL EXCISE 2019 (7) TMI 1185 - CESTAT CHENNAI wherein the Hon ble CESTAT on an identical set of facts has held as denial of refund is not in accordance with law. It is very strange that the learned Commissioner (Appeals) has failed to give any finding on the above relied upon decisions and he has placed reliance on decisions which are not relevant to the facts of the present case. The decisions relied upon by the learned Commissioner in the impugned order does not deal with the subject involved in these cases. The rejection of the refund under Rule 5 of CCR read with Notification No.27/2012 is not sustainable in law - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Refund claim rejection based on non-compliance with Notification No.27/2012-CE after the introduction of GST Law.
- Appellant's compliance with the conditions of Para 2(h) of Notification No.27/2012-CE.
- Interpretation of the proviso to Section 142(3) of CGST Act regarding refund of CENVAT credit.
- Applicability of previous tribunal decisions on similar issues to the present case.

Issue 1: Refund claim rejection based on non-compliance with Notification No.27/2012-CE after the introduction of GST Law.

The appellant, a 100% EOU exporting goods, filed a refund claim for unutilized CENVAT credit on input and input services for the period April 2017 to June 2017. The Assistant Commissioner rejected the claim, stating that the credit had been carried forward to TRAN-1 under the CGST Act 2017 and debited from the CENVAT credit account in GSTR-3B for December 2017, contravening Section 142(4) of CGST Act 2017. The Commissioner (Appeals) upheld this decision. The appellant argued that due to the introduction of GST Law, they couldn't file ER-2 Returns, so they debited the refund claim from GSTR-3B in December 2017 to comply with Notification No.27/2012. The Tribunal found that the appellant had reversed the credit under GST Law, satisfying the conditions of the notification. Previous tribunal decisions supported this interpretation, leading to the rejection of the refund claim being deemed unsustainable.

Issue 2: Appellant's compliance with the conditions of Para 2(h) of Notification No.27/2012-CE.

The appellant contended that they complied with Para 2(h) by debiting the refund claim amount in GSTR-3B in December 2017 after the introduction of GST Law, as they couldn't file ER-2 Returns. The appellant's actions were seen as sufficient compliance with the notification's conditions, as the credit had been reversed under GST Law at the time of filing the refund claim. The Tribunal referenced previous cases where similar compliance was accepted, emphasizing the practical challenges faced by the appellant post-GST implementation.

Issue 3: Interpretation of the proviso to Section 142(3) of CGST Act regarding refund of CENVAT credit.

The proviso to Section 142(3) of the CGST Act states that no refund shall be allowed if the balance of CENVAT credit has been carried forward under the Act. The Assistant Commissioner and Commissioner (Appeals) used this provision to reject the refund claim. However, the Tribunal found that the appellant's actions of reversing the credit under GST Law and debiting the refund claim in GSTR-3B were in line with the notification's requirements, making the rejection based on this provision unsustainable.

Issue 4: Applicability of previous tribunal decisions on similar issues to the present case.

The Tribunal cited previous decisions where the appellate authority had allowed refund claims in similar situations where the credit was reversed under GST Law and debited from GSTR-3B. These decisions were deemed relevant to the present case, highlighting the consistent interpretation of compliance with notification conditions post-GST implementation. The Tribunal rejected the Commissioner (Appeals)' reliance on decisions related to exemption notifications, emphasizing the distinction between exemption claims and refund claims under Rule 5 of CCR.

In conclusion, the Tribunal set aside the impugned order, allowing all three appeals of the appellant based on the appellant's compliance with the conditions of Notification No.27/2012-CE despite challenges posed by the introduction of GST Law.