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TMI Blog2021 (2) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund of the accumulated CENVAT Credit which has accumulated in their credit account for the reason of the payment of service tax which was not due from them. The argument of the counsel though appears attractive but needs to be rejected at the first instant itself, because as per the CENVAT Credit rule the refund of accumulated CENVAT Credit is permitted only as per the Rule 5 of the CENVAT Credit Rules, 2004 and definitely the case under consideration cannot be said to be the case in terms of Rule 5 - Appellant submitted for getting the refund applications processed they had reversed the entire amount claimed as refund by them from their Input Tax Credit Ledger under GST regime. This fact is not in dispute. In fact the details of the debits made by the appellants from their ITC Ledger, have been recorded by the Assistant Commissioner in his order. Since we hold that the refund applications as such are not maintainable, Assistant Commissioner should consider restoring the input tax credit so debited by the appellant to them if permissible in the GST Law. With regards to the CENVAT Credit has been adjudged subsequent to changeover from the previous regime of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequential relief as per law. 2.1 The appellant filed the following two refund applications: (a) on 27.10.2017 for ₹ 9,45,69,194 - on the grounds that vide office memorandum dated 9th May, 2016, issued by the Ministry of shipping (Port Wing), GOI, restoration of service tax exemption on construction, erection, commissioning or installation of original works pertaining to Port for the contracts entered prior to 1st March, 2015 was approved with retrospective effect; (b) on 27.12.2017, for ₹ 2,59,07,576/- of the tax paid by his sub contractors. 2.2 The Assistant Commissioner (Refunds), CGST, Mumbai South video I-O No. CGST/MS/Refunds/RKS/189-190/2018-19 dated 31.03.2019 rejected the said refund claims in entirety, under the provisions of Section 11B of the Central Excise Act, 1944, as made applicable to Service Tax matters by virtue of Chapter V of Section 83 of the Finance Act, 1994, inter-alia, on the following grounds : (a) Refund for the period 01.04.2015 to 29.02.2016 was time barred and not maintainable, in terms of Section 103 of the Finance Act, 1994 as the same had not been filed within 6 months from the date of the Finance Bill, 2016 received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim was made and ITC credit allowed. On discovery of the erroneous payment of service tax by them to their sub contractors, they had filed these refund applications claiming the refund of the service tax erroneously paid by them. Since they are claiming the refund of the Service Tax erroneously paid by them hence the same is not an application for refund as per the Notification No 9/2016-ST dated 01.03.2016, read with Section 103 of the Finance Act, 2016, as per which the refund application was to be filed within the six months from the dated of assent of the Finance Act, 2016 by the President but was an application which was filed by them as per Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. Since they claim the refund as per Section 11B of the Central Excise Act, 1944, it should be governed by the provisions of that Section and not the period of limitation as provided by the Section 103 of the Finance Act, 1994. Further for claiming the refund they had reversed the ITC Credit to the extent of amount claimed as refund in cash in terms of Section 11B. Out of the total credit reversed by them by the impugned order, part cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facilities and received remuneration from the claimant against their Tax invoices. Further, M/S. ITD cementation India Limited gave undertaking that they have not claimed and nor will be claiming any refund from the Service Tax/GST department for the service tax amount charged to the claimant. 18. In view of the above it is clear that the doctrine of unjust enrichment is not applicable in the instant case as the claimant has sought refund for the taxes paid by them to their vendors against the service which is exempted and no service tax is to be levied on the said service. Since the service provider charged service tax to the claimant on the invoices issued to them and the claimant has paid service tax to their vendors and thus the ultimate tax burden is borne by the claimant only 19. The claimant has submitted the ST-3 return for the Period April 2014 to June 2017. Also a reconciliation statement is submitted by the claimant reconciling the Cenvat Credit received/taken directly on input services. The same is illustrated below: Year Period Date of CENVAT Credit taken Filing ST return date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the claimant was seeking the refund of the said amount and on the other hand that they are not debiting the said amount from their accounts and are carrying it forward to the GST regime by way of filing the Trans-1 return. In due course, the claimant has reversed the amount of ₹ 2,59,07,576/- and ₹ 9,45,69,194/- by generating the Refund application vide ARN No. AD270717037731V dated 07.02.2018 and ARN NO. AB271217366942T dated 07.02.2018 respectively under Refund of ITC accumulated due to inverted tax structure. On realization that they have wrongly reversed the credit taken under Trans-1 by generating the refund application under inverted tax structure entry, the claimant has requested to reject their refund application and thus withdraw their application of GST refund. Accordingly, vide two separate Rejection order under FORM-GST RFD-06 both dated 03.10.2018 were issued to the claimant and credit of ₹ 2,59,07,576/- and ₹ 9,45,69,194/- re-credited to the claimant Electronic Credit ledger. Subsequently, the claimant debited the credit of ₹ 12,04,76,770/- (₹ 9,45,69,194/- vide debit entry no. D12710180574658 dated 24.10.2018 and ₹ 2,59,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Section 128 are extracted hereunder : 128. Appeals to Commissioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra). 45. Reliance was also placed on a decision of Rajasthan High Court with respect to service tax in Central Office Mewar Palace Org. v. Union of India - 2008 (12) S.T.R. 545 (Raj.). In view of the aforesaid discussion, we are not inclined to accept the reasoning adopted by the High Court, that too is also not under the provisions of the Customs Act. 46. The decision in Intex Technologies (India) Ltd. v. Union of India has followed Micromax (supra). The reasoning employed by the High Courts of Delhi and Madras does not appear to be sound. The scope of the provisions of refund under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d applications,- 6.1 Further, I find that as far as rejection of cash refund by both the authorities is concerned, there is no infirmity and I uphold that said findings. Further, the findings of the original authority that the amount of refund claim would lapse under Section 142 of Central Goods and Services Tax Act, 2017 is not tenable in law, since there was no dispute about the fact that at the time of filing of refund claim, the appellant had debited the whole amount in their Cenvat account as required by the then Notification No. 27/2012, dated 18-6-2012 and when the GST was introduced, there was no amount lying in the balance in the appellant s record. Further, provision to sub-section (3) of Section 142 of Central Goods and Services Tax Act, 2017 is not applicable in the present case. The appellants are entitled to take the re-credit of the Cenvat for which they had filed the refund claims and the said amount will not lapse as per Section 142 of the Central Goods and Services Tax Act, 2017. 4.7 The decision of Bangalore Bench in the case of Wave Mechanics, supra was followed by us in the case of Alumatic Cans Pvt. Ltd. [Final Order No A/85937/2020 dated 02.12.2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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