2024 (5) TMI 1271 - AT - Central Excise

Refund in cash - appellant's request for refund filed beyond time limit - Nature of the communication from the Assistant Commissioner - order/decision against which remedy of appellant to Commissioner (Appeals) has been provided as per Section 35 of the Central Excise Act or not - Maintainability of the appeal before the Commissioner (Appeals) - applicability of Section 142 (3) and 142 (6) of the CGST Act, 2017. Refund in cash - appellant's request for refund filed beyond time limit - HELD THAT - The appellant claimed they requested the refund on 20.09.2017, but records show the approach was made on 21.05.2018, approximately 9 months later. The Assistant Commissioner clarified that the refund was sanctioned on 10.08.2017, and no further action could be taken as the appellant did not utilize the remedy u/s 35 of the Central Excise Act, 1944, within the stipulated time. Nature of the communication from the Assistant Commissioner - order/decision against which remedy of appellant to Commissioner (Appeals) has been provided as per Section 35 of the Central Excise Act or not - HELD THAT - The view of the Commissioner (Appeals) that this is not an appealable order this is in any way not justifiable in view of the decisions referred to by the learned counsel - reliance placed in the case of Gujarat Ambuja Cement Ltd. 2005 (3) TMI 375 - CESTAT, NEW DELHI has held that ' On hearing both the sides, we accept the contention of the appellants that the communication dated 24-2-2005 is in the nature of an order affecting the rights of the party for the reason that the claim to avail the exemption has been denied and hence the communication is an order and an appeal very much lies before the Commissioner (Appeals). ' Applicability of Section 142(3) 142(6) of the CGST Act, 2017 - HELD THAT - The refund claim was filed by the appellant prior to the introduction of GST in the country (From 01.07.2017) the order allowing the refund claim by way of CENVAT credit has been passed on 10.08.2017 when there was no CENVAT credit account in existence - the Order-In-Original dated 10.08.2017 should be read in conjunction with these provisions, implying the refund should be in cash. Maintainability of the appeal before the Commissioner (Appeals) - HELD THAT - The Commissioner (Appeals) erred in holding the appeal as non-maintainable and directed the jurisdictional authorities to implement the refund order in cash as per the provisions of Section 142(3) and 142(6) of the CGST Act, 2017. The Jurisdictional Authorities are directed to implement the Order-In-Original in the light of the provisions contained under Section 142 (3) and 142 (6) of the CGST Act, 2017 - Appeal allowed.

Issues Involved:
1. Timeliness of the appellant's approach to the department for refund.
2. Validity of the Assistant Commissioner's communication as a non-appealable order.
3. Entitlement to refund in cash under the CGST Act, 2017, instead of credit in the CENVAT account.
4. Maintainability of the appeal before the Commissioner (Appeals).
5. Implementation of the Order-In-Original in light of the CGST Act, 2017 provisions.

Issue-wise Detailed Analysis:

1. Timeliness of the appellant's approach to the department for refund:
The appellant claimed they approached the department on 20.09.2017 requesting a refund by cheque, as they could not take credit in the CENVAT Credit Account due to technical reasons. However, it was observed that the appellant actually approached the department on 21.05.2018, approximately nine months later. This discrepancy was noted by the Commissioner (Appeals), who found that the appellant's claim regarding the date was incorrect.

2. Validity of the Assistant Commissioner's communication as a non-appealable order:
The Assistant Commissioner clarified in a letter dated 18.12.2018 that since a speaking order had already been passed on 10.08.2017, no further action could be taken on the impugned order. The Commissioner (Appeals) held that this communication was not appealable, as the remedy under Section 35 of the Central Excise Act, 1944, was available but not utilized by the appellant within time.

3. Entitlement to refund in cash under the CGST Act, 2017, instead of credit in the CENVAT account:
The appellant argued that the refund should be given in cash as per Section 142(3) and 142(6) of the CGST Act, 2017. The provisions state that any amount accruing as credit should be paid in cash, and any appeal or review relating to CENVAT credit should be disposed of in accordance with the existing law, with admissible amounts refunded in cash. The Tribunal found that the Order-In-Original dated 10.08.2017 should have resulted in a cash refund, considering the transition to GST and the non-existence of the CENVAT credit account post-GST introduction.

4. Maintainability of the appeal before the Commissioner (Appeals):
The Tribunal referenced several decisions (Gujarat Ambuja Cement Ltd., Bhagwati Gases Ltd., Hindustan Rubber & General Indus., and Oswal Castings Pvt. Ltd.) to support the view that communications affecting the rights of the appellant are appealable. It was held that the Assistant Commissioner's letter should be read in continuation of the Order-In-Original and that the appellant's appeal was maintainable. The Tribunal emphasized that law does not intend to leave a party remediless.

5. Implementation of the Order-In-Original in light of the CGST Act, 2017 provisions:
The Tribunal concluded that the Order-In-Original No.144/Ref./AC/HPR/2-17-18 dated 10.08.2017, when read with Section 142(3) and 142(6) of the CGST Act, 2017, mandated a cash refund. The Tribunal directed the Jurisdictional Authorities to implement the Order-In-Original accordingly and set aside the impugned order of the Commissioner (Appeals).

Conclusion:
The appeal was allowed with consequential relief as per law, directing the Jurisdictional Authorities to implement the refund in cash as per the provisions of the CGST Act, 2017. The Tribunal found no merit in the impugned order of the Commissioner (Appeals) and set it aside.

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