2024 (6) TMI 178 - AT - Central Excise

Refund of CVD paid under the existing statute, Central Excise Act, 1944 - whether the appellant is eligible to claim refund of Additional Duties of Customs (CVD) paid on re-import of goods under the provisions of Section 142(3) of the CGST Act, 2017? - HELD THAT - It is found that the larger bench in M/S. BOSCH ELECTRICAL DRIVE INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL TAX, CHENNAI 2023 (12) TMI 1145 - CESTAT CHENNAI-LB has examined the issue regarding whether this Tribunal is the appropriate authority to decide the issue in appeal against the order passed in respect of the matter relating to refund under Section 142(3) of the CGST Act, 2017 and has held that an appeal against such order would lie with this Tribunal. By perusal of the above order of the Larger Bench of the Tribunal, it is found that it has been made clear that the issue of deciding an appeal against the order relating to the refund decided under the provisions of Section 142 of CGST Act, 2017 is required to be dealt by this Tribunal. In the present case, as the CVD was paid subsequent to the appointed date (01.07.2017) for introduction of GST, i.e., on 18.07.2017, the appellant was unable to take credit of the same as Cenvat credit. Learned Commissioner (Appeals) had accordingly gave a finding that the appellant is eligible to avail credit of CVD paid on inputs under the Cenvat Credit Rules, 2004; however, he did not agree to the contention of the appellant stating that the provisions of Section 140(5) of CGST Act, 2017 provide for allowing credit of eligible duties. Further, learned Commissioner (Appeals) had held that the provisions of Section 142(3) ibid is not applicable to the present case and hence no refund can be claimed by the appellant under this provision. Thus, there are strong grounds to consider refund of CVD paid on re-imported Metformin HCL BP under B/E No. 9247561 dated 10.04.2017 and under Challan dated 18.07.2017 for an amount of Rs.1,50,147/- for which the appellant had filed the refund claim in the prescribed format under the provision of Section 142(3) CGST Act, 2017. Accordingly, the impugned order dated 07.01.2020 is not legally sustainable. Appeal allowed.

Summary

Issues Involved:
1. Eligibility to claim refund of Additional Duties of Customs (CVD) paid on re-import of goods u/s 142(3) of the CGST Act, 2017.
2. Jurisdiction of the Tribunal to decide appeals regarding refund orders under Section 142(3) of the CGST Act, 2017.

Summary:

Issue 1: Eligibility to Claim Refund of CVD:
The appellant, M/s Alcon Biosciences Pvt. Ltd., re-imported 4049.33 kgs of 'Metformin HCL BP' and paid CVD of Rs. 1,50,147/- on 18.07.2017. The appellant sought a refund of this CVD u/s 11B of the Central Excise Act, 1944 read with Section 142(3) of the CGST Act, 2017, as they could not take Cenvat credit post-GST implementation. The original authority and Commissioner of GST and CX (Appeals-I) rejected the refund claim. The Tribunal found that the appellant was eligible for a refund under Section 142(3) of the CGST Act, 2017, as the CVD was paid after the appointed date, and the appellant could not take credit as Cenvat credit. The Tribunal relied on judgments from various High Courts supporting the eligibility for refunds under similar circumstances.

Issue 2: Jurisdiction of the Tribunal:
The Tribunal examined whether it had the jurisdiction to decide appeals against refund orders under Section 142(3) of the CGST Act, 2017. The Larger Bench of the Tribunal in the case of Bosch Electrical Drive India Pvt. Ltd. Vs. Commissioner of GST & Central Excise, Chennai, had confirmed that appeals against such orders lie with the Tribunal. The Tribunal thus held it had jurisdiction to decide the present appeal.

Conclusion:
The Tribunal set aside the impugned order dated 07.01.2020, allowing the appeal filed by the appellant with consequential relief, confirming the appellant's eligibility for a refund of the CVD paid on re-imported goods under Section 142(3) of the CGST Act, 2017. The order was pronounced in open court on 03.06.2024.