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TMI Blog2021 (6) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... at case, the only option for the appellant was to file a refund claim under Section 11B read with Section 142(5) - the impugned order has not disputed the eligibility of credit debited in excess. After the introduction of GST in July 2017, there is no option provided to the noticee to avail CENVAT credit, as the returns have been suspended with regard to erstwhile regime. Consequently, the noticee filed the refund of the amount debited in excess in terms of provision 142(3) of CGST Act which was allowed as credit. The impugned order wrongfully invoked the Section 142(3) to reject the refund claim. It is a fact that if CGST Law was not introduced, the appellant would have availed credit in ER-1 Returns and as per Section 174(2)(c) of CGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the refund claim amount in their ER-2 Returns for June 2017 in compliance with Para 2(h) of the Notification No 27/2012 amounting to ₹ 60,12,607/-. The said refund was approved by the Assistant Commissioner wherein out of the total refund claim, an eligible amount of ₹ 47,54,652/- was sanctioned vide Order-in-Original dated 26.12.2017 and the amount of ₹ 12,56,178/- was rejected by restricting the refund to the balance CENVAT credit available on the last day of the quarter to ₹ 47,67,628/-. Since the appellant had debited the total amount of ₹ 60,12,607/- as a result of which there was an excess debit of CENVAT credit of ₹ 12,44,979/- as appellant had already filed TRAN-I as a result of which the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: Particulars Amount Refund as per formula A ₹ 60,12,607/- Balance CENVAT credit available as on last day of quarter (31.12.2016) B ₹ 47.67.628/- Balance of CENVAT credit available on the date of filing refund i.e. 26.06.2017, C ₹ 8,60,35,578/- Refund shall be minimum of A,B,C ₹ 47,67,628/- .1. He further submitted that the appellant, by mistake, debited an amount of ₹ 60,12,607/- instead of ₹ 47,67,628/- in June 2017 which resulted in an excess debit of ₹ 12,44,979/-. He also submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reas they have debited ₹ 60,12,607/- during June 2017 due to which there is an excess debit of ₹ 12,44,979/-. He further submitted that once the Commissioner (Appeals) has admitted the fact of excess debit then he should not have denied the refund by resorting to the provision of Section 142(3) of the CGST Act as per which any claim of refund is rejected stands lapsed. He further submitted that this ground for rejection was never raised in the impugned SCN. He also submitted that it is a settled position of law that SCN is a foundation of any adjudication proceedings and if any provision is not invoked in the SCN, it could not be invoked and made the basis for decision. In support of this submission, he relied upon the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiterated the findings of the impugned order. 6. After considering the submissions of both the parties and perusal of the material on record, I find that it is not disputed that the appellant debited an amount of ₹ 60,12,607/- which resulted in excess debit of ₹ 12,44,979/-. Further, I find that the appellant has filed the present refund claim under Section 11B and not under Rule 5 of CCR read with Notification No.27/2017. Further, I also find that after the introduction of GST, the appellant could not transitioned the excess debit into TRAN-I. In that case, the only option for the appellant was to file a refund claim under Section 11B read with Section 142(5). Further, I find that the impugned order has not disputed the elig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid in cash , notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944.) 6.1. Further, I find that Order-in-Original dated 26.12.2017 restricted the amount of ₹ 12,56,178/- and not rejected the same. Therefore, the impugned order wrongfully invoked the Section 142(3) to reject the refund claim. It is a fact that if CGST Law was not introduced, the appellant would have availed credit in ER-1 Returns and as per Section 174(2)(c) of CGST Act, the appellant cannot be effected of its right, pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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