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2022 (10) TMI 796 - AT - Central ExciseRefund of CENVAT Credit against CVD and SAD paid, in the pre-GST regime, in cash - Section 142(3) of the CGST Act - HELD THAT - It is an admitted fact that Appellant had paid the CVD and SAD after the appointed date that is fixed for implementation of CGST Act. It is also not disputed by the Appellant that upon receipt of goods at his factory premises on 19.07.2017, there was window open for a considerable period of time to record the un-availed CENVAT Credit through Tran-I form but it is the only mistake committed by the Appellant in not availing the same within the stipulated time frame. It is apparent that Appellant s eligibility to take credit of the duties paid as CENVAT Credit is undisputable and only because of procedural aberration occurred during transition to GST period, Appellant could not take the credits in its electronic ledger in the GST regime, for which it sought for refund such a contingency is perhaps foreseen by the legislature for which contingent provision is well enumerated in Clause 6(a) of Section 142 of the CGST Act that deals with claim for CENVAT Credit after the appointed date under the existing law. It is an admitted fact of the parties that the said CENVAT Credit balance was not carried forward to the Appellant s account on the appointed date since it was not due on the said day also. Therefore, in view of clear provision contain under Section 142(6)(a) of the CGST Act, Claimant/Appellant is eligible to get the refund of credit by cash except where unjust enrichment is alleged or established against the Appellant. The Appellant is also otherwise eligible to go for availment of transitional credit through filing required forms in Tran-I as per the order passed by the Hon'ble Supreme Court in UNION OF INDIA ANR. VERSUS FILCO TRADE CENTRE PVT. LTD. ANR. 2022 (7) TMI 1232 - SC ORDER but in view of the observation of this Tribunal read with Section 142(6)(a) of the CGST Act that such CENVAT Credit amount shall be paid to the Appellant in cash, it can t avail dual benefits once order of this Tribunal is duly complied by the Respondent- Department by the closing date of the window. The Appellant is eligible to get refund of Rs.11,04,057/- paid against CVD and SAD which applicable interest, if any, within a period of two months of communication of this order - Appeal allowed.
Issues:
Confirmation of the rejection of a refund claim against CVD and SAD in the pre-GST regime. Analysis: 1. Jurisdiction Issue: - The jurisdiction of the CESTAT to hear the appeal was challenged based on divergent opinions. The Appellant cited precedents to affirm CESTAT's jurisdiction under Section 142 read with Section 174 of the CGST Act to decide similar appeals. - The Tribunal clarified that it has the authority to deal with appeals instituted against orders passed under the Excise Act and Finance Act, irrespective of the CGST Act's implementation. 2. Merits of the Appeal: - The Appellant sought a refund of un-availed CENVAT Credits post GST regime due to procedural lapses. The Commissioner (Appeals) rejected the refund, stating that the Appellant's case was covered under sub-Rule 5 of Section 140 of the CGST Act. - The Appellant argued for cash refund under Section 11B of the Central Excise Act, emphasizing the constitutional mandate against collecting tax without legal authority. Various judgments were cited to support the claim for refund. - The Respondent contended that the Appellant did not avail of the recourse provided under Section 140(5) of the CGST Act and thus was not entitled to a refund under Section 142(3) of the CGST Act. 3. Decision and Rationale: - The Tribunal acknowledged the Appellant's eligibility for CENVAT Credit but noted the procedural lapse in transitioning to the GST regime. It highlighted Clause 6(a) of Section 142 of the CGST Act, allowing refund of admissible credit in cash under the existing law. - As the CENVAT Credit balance was not carried forward to the Appellant's account on the appointed date, the Tribunal ruled in favor of the Appellant, granting a refund of Rs.11,04,057/- against CVD and SAD, subject to any applicable interest. - The decision emphasized compliance with the Tribunal's order and the eligibility for a cash refund, barring unjust enrichment against the Appellant. In conclusion, the Tribunal allowed the appeal, setting aside the Commissioner's order and granting the Appellant the refund sought for CVD and SAD payments, emphasizing the statutory provisions and the Appellant's entitlement to the refund.
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