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TMI Blog2021 (5) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... Education Cess, Secondary Higher Education Cess and Krishi Kalyan Cess cannot be transferred to GST account then it is only a cenvat credit of Education Cess, Secondary Higher Education Cess and Krishi Kalyan Cess lying unutilized as on 01.07.2017 in their cenvat credit account. Therefore, the contention of the ld. AR that it is a GST credit, is not acceptable when the provision of law is very much clear that the said credit cannot be transferred to GST Regime. Whether the refund claim filed by the appellant is barred by limitation or not? - HELD THAT:- The amendment to Section 140 came after one year of the switching to the GST Regime on 30.08.2018 which is applicable retrospectively. In that circumstances how the appellant could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NO. 60844/2021 - Dated:- 24-5-2021 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) Present for the Appellant: Mr. Mihir Deshmukh, Advocate Present for the Respondent: Mr. Vijay Gupta, Authorized Representative ORDER The appellant is in appeal against the impugned order wherein the refund claim filed by them of Education Cess, Secondary Higher Education Cess and Krishi Kalyan Cess filed by them lying unutilized in their cenvet credit account on 01.07.2017 when GST Regime came into force has been denied. 2. The facts of the case are that the appellant is providing various services. The cenvet credit of various duties and services paid by them and Education Cess, Secondary Higher Education Cess, Krishi Kalyan Cess were lying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant is in appeal before me. 3. The ld. Counsel for the appellant submits that in similar set of facts in the case of M/s Bharat Heavy Electricals Ltd vs. Commr. of CGST Customs, this Tribunal vide its Final Order No. 51849/2019 dt. 26.04.2019 has allowed the refund claim, therefore, the impugned order is to be set aside. 4. On the other hand, the ld. AR opposes the contention of the ld. Counsel and submits that in this case, the appellant has taken the cenvat credit of Education Cess, Secondary Higher Education Cess and Krishi Kalyan Cess under GST Regime on 01.07.2017, therefore, it has become GST credit and if any refund is required to be filed by them, it is to be filed under CGST Act, 2017 in terms of the amendment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in terms of the amendment to Section 140 of the CGST Act, 2017 on 30.08.2018, the said amount shall remain lying unutilized in their cenvat credit account on account of Education Cess, Secondary Higher Education Cess and Krishi Kalyan Cess as good as on 01.07.2017. Further, as admitted by both the sides that in terms of Section 140 of the Act, the amount of Education Cess, Secondary Higher Education Cess and Krishi Kalyan Cess cannot be transferred to GST account then it is only a cenvat credit of Education Cess, Secondary Higher Education Cess and Krishi Kalyan Cess lying unutilized as on 01.07.2017 in their cenvat credit account. Therefore, the contention of the ld. AR that it is a GST credit, is not acceptable when the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same view has been taken by this Tribunal in the case of M/s Bharat Heavy Electricals Ltd (supra) in para 4, which is reproduced herein below: 4. We have carefully gone through the rival arguments. There is no dispute that on 01/07/2017, the cesses credit validly stood in the accounts of the assessee and very much utilizable under the existing provisions. The appellants could not carry over the same under the GST regime. Thus the appellants were in a position where they could not utilize the same. We agree with learned Counsel of the appellant that the credits earned were a vested right in terms of the Hon ble Apex Court judgement in Eicher Motors case and will not extinguish with the change of law unless there was a specific provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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