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2024 (9) TMI 1173 - AT - Service TaxMaintainability of appeal - refund claim - time limitation - Whether the order passed under Section 142 of the CGST Act, 2017, is appealable before CESTAT? - HELD THAT - The Larger Bench while answering the reference as to whether the appeal is maintainable before the CGST Appellate Tribunal and held that the appellant is not entitled to file an appeal against the order passed under Section 142 of the CGST Act, 2017 before the Appellate Tribunal under Section 112 of the CGST Act before the Appellate Tribunal, as Section 112 of the CGST Act allows appeal against the order passed under Section 107 or Section 108 of the CGST Act. Therefore, the Larger Bench came to the conclusion that appeal against the order passed under Section 142 (6) of the CGST Act is maintainable before this Bench. Tribunal has decided a case involving identical facts. Tribunal held in the case of PUNJAB NATIONAL BANK VERSUS COMMISSIONER, CENTRAL GOODS AND SERVICE TAX, CENTRAL EXCISE, JAIPUR, RAJASTHAN 2022 (5) TMI 652 - CESTAT NEW DELHI that 'appellant is entitled for cash refund in view of Section 142(9)(b) of the CGST Act but for the purpose of verification of original invoices/documents, I remand the case back to the original authority for the limited purpose of verification of the invoices/documents.' The impugned order is set aside - appeal allowed.
Issues Involved:
1. Maintainability of the appeal before CESTAT under Section 142 of the CGST Act, 2017. 2. Entitlement to refund of CENVAT credit under Section 142(9)(b) of the CGST Act, 2017. 3. Applicability of the time-bar and other technical issues under Section 11B of the Central Excise Act, 1944. Issue-wise Detailed Analysis: 1. Maintainability of the appeal before CESTAT under Section 142 of the CGST Act, 2017: The appellants filed a refund claim under Section 142(9)(b) of the CGST Act, 2017, which was initially rejected by the Original Authority and upheld by the Commissioner (Appeals). The Single Member of the Bench deferred the hearing pending the Larger Bench's decision in the case of Bosch Electrical Drive India Pvt. Ltd. The Larger Bench concluded that appeals against orders passed under Section 142(6) of the CGST Act are maintainable before CESTAT. The Tribunal found that the provisions of Section 142(9) are parimateria with those of Section 146, thus affirming the maintainability of the appeal before CESTAT. This decision ensures that appellants are not deprived of the opportunity to prefer an appeal. 2. Entitlement to refund of CENVAT credit under Section 142(9)(b) of the CGST Act, 2017: The appellants claimed a refund for incremental CENVAT credit arising from revised service tax returns. The Tribunal noted that Section 142(9)(b) allows refunds for revised returns filed within the specified time limit under the existing law. The Tribunal referred to the case of Punjab National Bank, where it was established that Section 142(9)(b) has an overriding effect over Section 11B of the Central Excise Act, 1944, except for the provision relating to unjust enrichment. The Tribunal held that the appellants fulfilled the conditions under Section 142(9)(b) and were entitled to a refund. The Tribunal remanded the case to the Original Authority for verification of original invoices/documents to grant the refund. 3. Applicability of the time-bar and other technical issues under Section 11B of the Central Excise Act, 1944: The Department argued that the refund claim was time-barred and raised other technical issues. However, the Tribunal found that the rejection by the Original Authority and the Appellate Authority was based on the maintainability of the proceedings under Section 142(9) of the CGST Act, 2017. The Tribunal reiterated that Section 142(9)(b) provides for refunds notwithstanding anything to the contrary in the existing law, except for Section 11B(2) of the Central Excise Act, 1944. The Tribunal emphasized that the substantive provision of the statute (Section 142(9)(b)) prevails over the rules framed thereunder, thus overriding the time-bar provisions of Section 11B. Conclusion: The Tribunal set aside the impugned order and allowed the appeal, directing the Original Authority to verify the invoices/documents and grant the refund in accordance with Section 142(9)(b) of the CGST Act, 2017. The decision ensures that the appellants are entitled to a cash refund, subject to verification, within three months from the receipt of the certified copy of the order. (Order pronounced in the open court on 19/09/2024)
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