2022 (12) TMI 1048 - AT - Central Excise

Refund by way of re-credit in cenvat credit account - amount was paid as pre-deposit - transition to GST regime - HELD THAT - The Commissioner (Appeals) have erred in dismissing the appeal, as appellant was before the Adjudicating Authority for correction of mistake of law in the adjudication order. Thus, there is no deliberate delay and the appellant have filed appeal within thirty days from the date of receipt of communication dated 09.04.2018 of the Adjudicating Authority. Secondly, I find that the order of the Court below directing to take credit of Rs. 6,60,016/- in the cenvat account vide Order-in-original dated 16.08.2017, is directly in conflict with the transitional provision, particularly in Section 142(6)(a) of the CGST Act. The order of the Court below is modified to the effect that the refund of the amount of Rs.6,60,016/-, which was a pre-deposit during pendency of appeal, be refunded in cash to the appellant-assessee alongwith interest from the date of deposit till the date of refund at the prescribed rate under Section 35FF of the Central Excise Act - appeal allowed.

Summary

Issues:
1. Claim of refund under the GST regime for amount paid through cenvat.
2. Dismissal of appeal by Commissioner (Appeals) as time-barred.

Analysis:
1. The appellant, engaged in manufacturing shock absorbers falling under Chapter 87 of the Central Excise Tariff Act, paid an amount through cenvat as per a Stay order. The Tribunal allowed the appeal, setting aside the demand. The appellant filed a refund application, which was partially sanctioned by re-crediting the cenvat account and cash payment for interest and penalty. The appellant contended that post-GST implementation, credit in cenvat accounts was disallowed after a transitional period. Citing Section 142(6)(a) of the CGST Act, the appellant sought cash refund for the amount paid. Despite representations to the Adjudicating Authority and subsequent appeal to the Commissioner (Appeals), the latter rejected the appeal as time-barred. The Member (Judicial) found the dismissal erroneous, noting the appellant's pursuit for correction of a legal mistake. The judgment directed a cash refund of the pre-deposited amount with interest under Section 35FF of the Central Excise Act within 45 days.

2. The Commissioner (Appeals) rejected the appellant's appeal as time-barred, leading to the appellant's challenge before the Appellate Tribunal. The Member (Judicial) observed that the appellant's actions were in response to legal provisions and not deliberate delay. The judgment highlighted the conflict between the lower court's order and the transitional provision under Section 142(6)(a) of the CGST Act. Consequently, the appeal was allowed, modifying the lower court's order to grant a cash refund of the pre-deposited amount along with interest. The directive mandated the refund within 45 days, providing the appellant with consequential benefits.