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TMI Blog2021 (8) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular applicant. The appellant can not take credit on the basis of ruling of AAAR of Maharastra as it is out of jurisdiction of Rajasthan as it is not binding/applicable in the state of Rajasthan, consequently, solely in the said fact the appellant is not entitled to get the said refund claim. The appellant obviously misconceive the fact by filing the said refund claim in the jurisdiction of Rajasthan accordingly, I do not accede to the plea of the appellant. Further, the adjudicating authority findings is agreed upon that the said AAAR, although it is at all not binding on the jurisdictional authority, the said AAAR order does not talk about any refund of ITC hence it is not eligible to them. Thus, there is no place in the provision of law for refund of such kind of ITC hence, it may be concluded that the said refund claim of appellant is beyond the provisions of law, and is not covered up in any of the provisions of CGST Act/Rules made there under accordingly, it may not be permitted. Time limitation for availing credit - HELD THAT:- Section 16 (4) of CGST Act, 2017 provides the time limit as well as manner of taking eligible credit. In the instant case, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1023T dated 18.08.2020. 2.2 On scrutiny of refund applications submitted by the appellant, the adjudicating authority has issued a Show Cause Notices in the Form RFD- 08 dated 26.08.2020 proposing rejection of refund claim on account of following reasons: As per Hon'ble AAAR, Mahararstara order No. MAH/AAAR/SSR.RJ/04A/2018-19 dated 31.10.2019 the taxpayer is allowed to take Input Tax Credit against the GST paid on the purchase and fabrication of the motor vehicles used for carrying cash and bullions but the order does not talk about any refund of ITC. Therefore refund of the ITC as claimed against the Hon'ble AAAR order dated 31.10.2019 is not allowed to the claimant. 2.3 Further, after considering their reply/submissions of the appellant the adjudicating authority has rejected the refund claim amounting to ₹ 6,90,400/- and passed the impugned order in the Form of GST RFD-06 vide reference No. ZS0809200247598 dated 16.09.2020. 3. Being aggrieved with the impugned Order No.ZS0809200247598 dated 16.09.2020 , the appellant has filed the appeal on 10.12.2020 on the following grounds which may be summarized as under:- The Appellants submit that they are e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be admissible by AAAR Ruling dated 31.10.2019; b) It is the Appellant's case, that till the matter was pending before AAAR, the issue of availability of ITC of tax paid on cash carry vans was not decided and only when AAAR vide Ruling dated 31.10.2019 finally ruled in their favour, the cause of refund of the said credit of tax paid on cash carry van arose; hence, date of the Ruling has to be considered as 'relevant date' as per Explanation (2)(d) to Section 54; The Appellants have filed refund claim on 18.08.2020, which is within two years from date of Ruling; c) alternatively, since the Appellants are purchaser of goods, relevant date has to be 'date of receipt of goods or services'; the Appellants are filing refund claim on 18.08.2020 which is within two years from date of goods received; d) The Appellants refund claim may also be considered under Explanation (2) (h) to Section 54 as 'date of payment' as relevant date; the Appellants are filing refund claim on 18.08.2020 which is within two years from date of payment of tax; e) that the said amount of credit of tax paid on inward supplies, so the question of passing on the same to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 16 and sub-section (1) of section 18, input tax credit shall not be available in respect of the following, namely: - [(a) motor vehicles for transportation of persons having approved seating capacity of not more than thirteen persons (including the driver), except when they are used for making the following taxable supplies, namely: (A) further supply of such motor vehicles; or (B) transportation of passengers; or (C) imparting training on driving such motor vehicles; (aa) vessels and aircraft except when they are used- (i) for making the following taxable supplies, namely: - (A) further supply of such vessels or aircraft; or (B) transportation of passengers; or (C) imparting training on navigating such vessels; or (D) imparting training on flying such aircraft; (ii) for transportation of goods; 4. As the expression motor vehicles and other conveyances used in section 17(5)(a) prior to 1.2.2019 suggests the restriction is to per se motor vehicles and other conveyances whether used for transportation for persons or for transportation of goods but an exception from applicability of the said restriction i.e. 'for transportation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentative of the appellant appeared for personal hearing and reiterated the grounds of appeal and explained the same in details. She emphasized that since AAAR allowed the ITC in favour of appellant and the appellant could not availed/utilized the ITC due to provisions of Section 16(4) of the CGST Act, 2017. They applied for refund for the same being it is an amount paid by the appellant and it is fall under Section 54 of the CGST Act, 2017 for entitlement of refund. In view of submission/grounds of appeal she requested for decision in favour of the appellant. 5 On perusal of submissions of the appellant, it is observed that the instant refund case/claim is pertains to input tax credit on purchase and fabrication of cash carry van. In this regard, appellant submitted that since the issue of admissibility of credit of tax paid on cash carry van was pending before the Authority of Advance Ruling, hence they could not have taken credit in electronic credit ledger, although the same was auto populated in GSTR 2A. Further, they have submitted that the MAR vide his ruling dated 31.10.2019, ruled that the appellant are entitled to ITC of tax paid on cash carry van, and therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solely in the said fact the appellant is not entitled to get the said refund claim. The appellant obviously misconceive the fact by filing the said refund claim in the jurisdiction of Rajasthan accordingly, I do not accede to the plea of the appellant. Further, I also agree with the adjudicating authority findings that the said AAAR, although it is at all not binding on the jurisdictional authority, the said AAAR order does not talk about any refund of ITC hence it is not eligible to them. 8 Further, on going through the provisions of Section 54 of CGST Act, 2017, I find that there is no provision available for such refund of unutilized input tax credit except in following cases. i. Zero rated supplies made without payment of tax. ii. Where the credit has accumulated on account of inverted duty structure. 9 In view of above, I do not find any place in the provision of law for refund of such kind of ITC hence, it may be concluded that the said refund claim of appellant is beyond the provisions of law, and is not covered up in any of the provisions of CGST Act/Rules made there under accordingly, it may not be permitted. 10 Without any prejudice as discussed above/Apar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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