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TMI Blog2021 (8) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... r GST which is liable to be recovered from the appellant along with interest and penalty. For verification of these facts, the case needs to be remanded back to the original authority and the original authority will examine the evidences which may be submitted by the appellant relating to these two amounts and thereafter will pass a fresh decision relating to the demand of cenvat credit irregularly transferred to TRAN1 and accordingly interest and penalty will be imposed by the original authority - Appeal allowed by way of remand. - Central Excise Appeal No. 20114 of 2021 - Final Order No. 20695/2021 - Dated:- 18-8-2021 - SHRI S.S GARG, JUDICIAL MEMBER For the Appellant : Shri ANIRUDHA R J NAYAK ADVOCATE For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctronic Credit Ledger under the GST regime is recoverable in terms of Rule 14 of CENVAT Credit Rules, 2004 (CCR, for short) read with Section 11A of Central Excise Act, 1944 (CEA, for short), along with interest under Rule 14(1)(ii) of CCR read with Section 11AA of CEA and penalty under Rule 15 of CCR read with Section 11AC(1)(c) of CEA. On these allegations, a show-cause notice dt. 12.09.2018 was issued proposing to recover the ineligible cenvat credit relating to education cess and higher secondary education cess transitioned into GST along with interest and penalty. After following the due process, the adjudicating authority confirmed the demand under proviso to Rule 14 of CCR read with Section 11A of CEA along with interest under Rule 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant had a right to transition the same into GST regime. They have also relied upon the decision in the case of Sutherland Global Services Pvt. Ltd. Vs. Asst. Commissioner of CGST CE [2019(30) GSTL 628 (Mad.)] wherein the Single Judge of the Madras High Court has allowed the transition of education cess and higher education cess into GST. 5. On the other hand, the learned AR defended the impugned order and submitted that the decision of the Single Judge in the case of Sutherland Global Services Pvt. Ltd. relied upon by the appellant has been set aside by the Division Bench of the Madras High Court reported in 2020(10) TMI 804- MADRAS HIGH COURT in Writ Appeal No.53 of 2020 decided on 16/10/2020. She further submitted that the allegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put Credits in respect of Cess, whether collected as Tax or Duty under the then existing laws and therefore, such set off cannot be allowed. 61. For these reasons also, in our opinion, the learned Single Judge, with great respects, erred in allowing the claim of the Assessee under Section 140 of the CGST Act. The main pitfalls in the reasoning given by the learned Single Judge are (a) the character of levy in the form of Cess like Education Cess, Secondary and Higher Education Cess and Krishi Kalyan Cess was distinct and stand alone levies and their input credit even under the Cenvat Rules which were applicable mutatis mutandis did not permit any such cross Input Tax Credit, much less conferred a vested right, especially after the lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined by the Department is not correct because they have submitted the evidence before the adjudicating authority and it is coming out from the audit report also that out of the impugned demand, an amount of ₹ 10,403/- relates to cenvat credit carried forward from the PLA and ₹ 39,839/- relates to cenvat credit of freight involved but the same has been considered by both the authorities. Since there is no finding with regard to these two claims and the nature of the claim, in the absence of the finding, I am of the opinion that for verification of these facts, the case needs to be remanded back to the original authority and the original authority will examine the evidences which may be submitted by the appellant relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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