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TMI Blog2018 (8) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax. It is to be utilized for payment of KKC only. Ruling:- The accumulated credit by way of Krishi Kalyan Cess (KKC) as appeared in the Service tax return of Input Service Distributor (ISD) on June 30, 2017 which is carried forward in the electronic credit ledger maintained by the Appellant under CGST Act 2017, shall not be allowed to be taken as admissible input tax credit. - ORDER NO. MAH/AAAR/SS-RJ/03/2018-19 - - - Dated:- 3-8-2018 - MR. RAJIV JALOTA, MEMBER AND MRS. SUNGITA SHARMA, MEMBER PROCEEDINGS (Under Section 101 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provisions under the MGST Act. The present appeal has been filed under Section 100 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as the CGST Act and MGST Act ] by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to set off with CGST liability. Advance Ruling authority has denied aforesaid submission of the appellant without stating any reason for the same. 3. Section 140(1) of CGST Act, 2017 (Act) allows a registered person to carry forward the CENVAT credit as captured in return for the period ended June 30, 2017 to electronic credit ledger provided the said credit is admissible under the Act. CCR has recognized KKC as CENVAT credit and Section 16 and Section 17 of the Act, which determines admissibility of input tax credit have put no restriction in admission of KKC as CENVAT credit under the aforesaid provision of the Act. Therefore KKC credit will also be considered as admissible CENVAT credit as per proviso (1) to section 140(1) read with section 16 and section 17 of the Act. Advance Ruling authority has denied aforesaid submission of the appellant without stating any reason for the same. 4. Advance Ruling Authority relies on the decision of Hon. Delhi High Court in case of Cellular Operators Association of India to negate the claim of the appellant without understanding the facts and the legal background of both the cases which completely different. Delhi High Court denied cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said section specifically lays down that CENVAT credit in the case of capital goods would be allowed to carry forward only if it is admissible as CENVAT credit under the existing law. No such condition is present u/s. 140(1). He further averred that the ARA has not discussed any of the above grounds. He referred to the Delhi High Court judgment in the case of Cellular Operator (cited supra) and stated that the High Court held that there is no vested right in the case of adjustment of EC and SHE. He claimed that there is no vested right in this case and they are not claiming any vested right. A plain reading of section 140(1) clearly indicates that the law allowed CENVAT Credit. He further stated that the FAQ in the case of SBC should not be relied on as it referred to SBC and not to KKC. He also stated that the Frequently Asked Question (FAQ) in the case of KKC is not binding. He referred to the case of Ratan Industries where it was held that a Circular contrary to the provision of law cannot be binding. He therefore prayed that the KKC allowed to be carried forward and should be admissible as Input Tax Credit. DISCUSSION AND FINDINGS 7. The appellant is engaged in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, leviable under the Excise Act; (iii) the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Textile and Textile Articles) Act,1978 ( 40 of 1978); (iv) the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 ( 58 of 1957); (v) the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001); (vi) the Education Cess on excisable goods leviable under section 91 read with section 93 of the Finance (No.2) Act, 2004 (23 of 2004); (via) the Secondary and Higher Education Cess on excisable goods leviable under section 136 read with section 138 of the Finance Act, 2007 (22 of 2007); (vii) the additional duty leviable under section 3 of the Customs Tariff Act, equivalent to the duty of excise specified under clauses (i), (ii), (iii), (iv), (v) (vi) and (via); (viia) the additional duty leviable under sub-section (5) of section 3 of the Custom Tariff Act, Provided that a provider of taxable service shall not be eligible to take credit of such additional duty; (viii) the additional duty of excise leviable under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be utilized for payment of excise duty or service tax. It could be utilized only for payment of KKC. Thus the CENVAT rules made an exception in respect of credit of KKC. 14. The ARA has relied upon the judgment of Delhi High Court in the case of Cellular Operators Association of India v. UOI (W.P. (Civil) No.7837 of 2016 dt.15.02.2018). The Association had filed a Writ Petition for direction that credit accumulated on account of Education Cess and Secondary and Higher Secondary Education Cess should be allowed to utilized for the payment of service tax/excise liability. Under the CENVAT credit rules 2004, credit of EC and SHE could be utilized for payment of EC and CHE respectively. The cross utilization of EC and SHE towards excise duty or service tax was impermissible and not permitted. Later on EC and SHE were abolished from 1.3.2015.The Appellant claimed that they have a vested right to avail benefit of any unutilized amount of EC and SHE. It was also the contention that EC and SHE was subsumed in the Central Excise Duty and therefore the amount lying in the credit towards EC and SHE should be allowed for availing CENVAT credit as both become a part of excise duty or se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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