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TMI Blog2021 (9) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant became entitled to avail Cenvat Credit of the CVD/SAD paid by him on the imported inputs in terms of Rule 3 of Cenvat Credit Rules, 2004 (CCR). Apparently, the said Cenvat Credit could not be availed any more due to the erstwhile law i.e. Central Excise Act, 1944 being taken over by New GST Act, 2017. Perusal thereof shows that the Act contains a provision to take care of such unutilized credits of the assessee to be refunded to them in cash. Further, it is also observed that the appeal before Commissioner (Appeals) was filed by the Department not under the erstwhile law but under the GST Act, 2017 - As objected by ld. DR himself that this Tribunal is not competent to deal with the appeals under GST Act. The appeal before C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 17 January, 2018 praying for redemption of Export Obligation (EO) under Export Obligation Period (EOP) of the said license. Pursuant to the said request, vide letter dated 17.01.2018, the authority directed the appellant to pay the requisite Custom Duty along with the interest on the excess import which otherwise was made duty free due to the said advance license in favour of the appellant. In addition, penalty of 3% on excess CIF value utilized was also directed to be paid. The entire amount of ₹ 24,77,668/- was paid by the appellant. Accordingly, the appellant became eligible to take the credit of CVD and Additional CVD paid on the said imports as per erstwhile Cenvat Credit Rules, 2004. By that time before appellant could uti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making the complete payment of duty as the appellant was already granted the advance license dated 21 March, 2017. Since certain conditions of the said license could not be fulfilled by the appellant that the appellant approached the appropriate authority, the office of DGFT, Indore praying for redemption of Export Obligation (EO) of the aid advance license. In the given circumstances, that the redemption was extended and the said appropriate authority assessed the remaining amount of duty which was duly paid by the appellant alongwith the interest as well as the penalty. It is impressed upon that as per Rule 3 of Cenvat Credit Rules, 2004 appellant is entitled to take Cenvat Credit on CVD paid. Due to which the refund application in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the erstwhile law i.e. Central Excise Act, 1944. In fact, post the Review Order of the Department; it was Department, who filed an appeal before the Commissioner (Appeals) under the new GST Act, 2017. The objection raised by ld. D.R. is rather applicable on the Department itself and in fact, the appeal of the Department before Commissioner (Appeals) was not maintainable. The Order passed by Commissioner (Appeals) is liable to be set aside on this score as well and reiterated the request for appeal to be allowed. 6. After hearing the rival contentions perusing the entire record I observe and hold as follows:- The apparent fact on record is that the appellant has paid the entire CVD/SAD upon the goods imported by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (3) thereof reads as follows:- (3) Every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed 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: and sub-section (8) (a) and (b) reads as follows:- (8) (a) where in pursuance of an assessment or adjudication proceedings instituted, whether before, on or after the appointed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) was filed by the Department not under the erstwhile law but under the GST Act, 2017. As objected by ld. DR himself that this Tribunal is not competent to deal with the appeals under GST Act. The appeal before Commissioner (Appeals) was not maintainable under GST Act for a refund application which was filed under the erstwhile law. The appeal as such was not maintainable. The order under challenge cannot sustain for the said reason as well. Seen either from the point of view of preliminary objection as has come in rebuttal from the appellant and keeping in view the entire above observation as far as the merits of the case are concerned, it is held that the order under challenge has wrongly rejected the refund despite an unambiguous pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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