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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 ..... CGST & CX, Mumbai South as under (i) Out of the total amount of Rs. 12,04,76,770/- involved in the two refund claims, I hereby sanction as amount of Rs. 5,90,99,124/- and order the said amount to be paid to the appellants. (ii) Rejection of Refund Claim to the extent of Rs. 6,13,77,646/- is upheld. The appeal filed by the appellants, M/s Karanja Terminal & Logistics Pvt Ltd., is partly allowed as above with consequential relief as per law." 2.1 The appellant filed the following two refund applications: (a) on 27.10.2017 for Rs. 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Counsel for the Appellant submit that - * the amounts which they claim as refund was paid by them to their service providers, and they had also claimed the credit of the amount paid as service tax to their sub contractors. * after the introduction of the GST regime, they have transferred this CENVAT Credit as ITC credit to their GST Input Tax Credit Ledger, for which proper Trans-1 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limited from which it is seen that the service tax amount collected by the claimant vendors has been paid the Government also. The claimant has also submitted an undertaking from their major Vendors ITD Cementation India Limited that during the period from 1st April 2015 to June 2017 they have provided construction services for berth and approach structure, back up yard and other 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 03.10.2018 were issued to the claimant and credit of Rs. 2,59,07,576/- and Rs. 9,45,69,194/- re-credited to the claimant Electronic Credit ledger. Subsequently, the claimant debited the credit of Rs. 12,04,76,770/- (Rs. 9,45,69,194/- vide debit entry no. D12710180574658 dated 24.10.2018 and Rs. 2,59,07,576/- vide debit entry no. D12710180573497 dated 24.10.2018) by way of filing the Form GST DRC-03, in the GSTIN , wherein an assessee is allowed to make voluntary payment under Section 73(5) of the Act. I find that the claimant filled the DRC-03, debiting an amount of Rs. 12,04,76,770/- (Rs. 9,45,69,194/- vide debit entry no. D12710180574658 dated 24.10.2018 and Rs. 2.59,07,576/- vide debit entry no. D12710180573497 dated 24.10.2018) from his Credit ledger, stating reason thereof that they are reversing the said amount as they have applied refund claims in respect of the said amounts. I also find that the same is reflected in the claimant's electronic credit ledger." 4.3 During the course of hearing, we made specific query from the counsel for the appellants as to what is their status vis a vis the payment of service tax. Counsel admitted that they are the * service reci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided 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. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression 'Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 and 128. 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. 48. Resultantly, we find that the order (s) passed by Customs, Excise, and Service Tax Appellate Tribunal is to be upheld and that passed by the High Courts of Delhi and Madras to the contrary, deserves to be and are hereby set aside. We order accordingly. We hold that the applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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]. 4.8 In the additional submissions filed, Appellant have relied upon the following decisions to argue that the amount of the CENVAT credit should be refunded to them in cash, * Thermax Ltd [2019 (31) GSTL 60 (GUJ)]; * Toshiba Machine (Chennai) Pvt Ltd [2019 (27) GSTL 216 (T- Chennai)] * Rawatwasia Ispat Udyog Pvt Ltd [2019 (26) GSTL 196 (T-Chandigarh)] * Oswal Castings Pvt Ltd [2019 (24) GSTL 649 (T-Chandigarh)] * SMG International [2019 (21) GSTL 446 (T-Chandigarh)] We do not find any merits in the submissions made by the Appellants, as the cases, which are referred above are the cases in which dispute with regards to the CENVAT Credit has been adjudged subsequent to changeover from the previous regime of Central Excise and Service Tax to the regime of GST. In all the cases the refund application or the rebate claim was filed before 01.07.2017 and determined subsequent to that date. It is not so in the present case. In the case o ..... 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