2023 (6) TMI 1055 - AT - Central Excise

Cash Refund claim - Transition to GST regime - non-utilization of Cess due to transition provisions coming into force on implementation of GST from 1 July, 2017 - HELD THAT - The learned Advocate states that subsequently sufficient decisions have clarified the position in their favour. He particularly seeks to rely on USV PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE ST, DAMAN 2023 (2) TMI 230 - CESTAT AHMEDABAD . As also on the decision of CESTAT-New Delhi in EMAMI CEMENT LIMITED, NU VISTA LIMITED VERSUS COMMISSIONER (APPEALS) , CGST, CENTRAL EXCISE, RAIPUR 2022 (3) TMI 1254 - CESTAT NEW DELHI . He drew attention to para 4 5 of the decision of co-ordinate Bench of Ahmedabad to emphasize the refund cannot be denied because of particular situation as brought out in above decision due to which the assessee was unable to avail the higher education Cess on etc. This Court is of the view, the matter stands covered by the above decisions cited by the learned Advocate - the issue is no longer res integra, the appellants are entitled to cash refund. Appeal allowed.

Summary

Issues involved: Non-utilization of Cess due to transition provisions under GST.

Summary:
The matter pertains to the non-utilization of accumulated Cess due to the transition provisions upon the implementation of GST from 1 July 2017. The appellants had unutilized Cess as there was no provision at the relevant time to migrate it to GST. The Advocate relied on previous decisions to support their case, such as the M/s. USV P. Ltd Vs. CCE, Daman case and the Emami Cement Ltd, Nu Vista Vs. CGST, Raipur case. The decision emphasized the entitlement to a refund of Cenvat credit of education cess and higher education cess under the GST regime. The Rule 3 of Cenvat Credit Rules was referred to, which clearly allows the credit of Education Cess and Secondary and Higher Education Cess. The Court found that the appellants are legally entitled to the Cenvat of Education Cess and Secondary and Higher Education Cess, hence the refund cannot be denied.

The Advocate and lower Authorities reiterated the findings of the decision. The Court noted that the matter is covered by previous decisions cited by the Advocate and various other decisions relied upon in those cases. Consequently, the Court held that the issue is no longer res integra, and the appellants are entitled to a cash refund as provided in the cited cases. Therefore, the appeal was allowed.