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2021 (6) TMI 749 - AT - Service Tax100% EOU - refund of unutilized CENVAT credit - time limitation - Section 11B and not under Rule 5 of CCR read with N/N. 27/2017 - HELD THAT - It is not disputed that the appellant debited an amount of ₹ 60,12,607/- which resulted in excess debit of ₹ 12,44,979/-. Further, the appellant has filed the present refund claim under Section 11B and not under Rule 5 of CCR read with Notification No.27/2017. Further, also after the introduction of GST, the appellant could not transitioned the excess debit into TRAN-I. In that case, the only option for the appellant was to file a refund claim under Section 11B read with Section 142(5) - the impugned order has not disputed the eligibility of credit debited in excess. After the introduction of GST in July 2017, there is no option provided to the noticee to avail CENVAT credit, as the returns have been suspended with regard to erstwhile regime. Consequently, the noticee filed the refund of the amount debited in excess in terms of provision 142(3) of CGST Act which was allowed as credit. The impugned order wrongfully invoked the Section 142(3) to reject the refund claim. It is a fact that if CGST Law was not introduced, the appellant would have availed credit in ER-1 Returns and as per Section 174(2)(c) of CGST Act, the appellant cannot be effected of its right, privilege, in availing credit merely in respect of refund rejected on account of limitation being passed after 27.12.2017 - thus, change in taxation regime should not affect the credit availment right of assessee. Hence the appellant is rightly entitled for the credit and also refund. The impugned order denying the refund by invoking Section 142(3) is not sustainable in law - Appeal allowed - decided in favor of appellant.
Issues:
1. Denial of refund claim by Commissioner of Central Tax (Appeals) based on Order-in-Original. 2. Rejection of fresh refund claim due to excess debit and filing of two refund claims for the same period. 3. Interpretation of Section 142(3) and Section 142(5) of the CGST Act. 4. Applicability of existing law for refund claims post-GST implementation. 5. Consideration of judicial precedents in refund claim adjudication. Analysis: 1. The appeal challenged the denial of a refund claim by the Commissioner of Central Tax (Appeals) based on an Order-in-Original that rejected a portion of the appellant's claim. The appellant, engaged in manufacturing and export, sought refund of unutilized CENVAT credit, which was partially sanctioned and partially rejected due to excess debit. 2. The rejection of a fresh refund claim by the adjudicating authority stemmed from the appellant filing two refund claims for the same period. The appellant argued that the fresh claim was necessitated by the excess debit, which could not be re-credited due to the introduction of GST, and should not be treated as a duplicate claim. 3. The Tribunal analyzed Section 142(3) and Section 142(5) of the CGST Act to determine the appropriate legal framework for processing refund claims post-GST implementation. It was observed that the impugned order wrongly invoked Section 142(3) to reject the refund claim, as the original Order-in-Original had restricted the refund amount, not rejected it. 4. The Tribunal emphasized that the appellant's right to credit should not be affected by the change in taxation regime, asserting that the appellant was entitled to the credit and refund. The Tribunal highlighted that under Section 174(2)(c) of the CGST Act, the appellant's credit availment rights should not be compromised due to refund rejection based on time limitation. 5. The Tribunal considered the appellant's arguments, citing judicial precedents to support the contention that the denial of a refund claim due to technical errors or excess debit is unjustified. The appellant's reliance on legal principles and precedents underscored the need for a fair and thorough assessment of refund claims, especially in transitional periods like the introduction of GST. By setting aside the impugned order and allowing the appeal, the Tribunal upheld the appellant's right to the refund, emphasizing the importance of fair treatment and adherence to legal provisions in adjudicating refund claims post-GST implementation.
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