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TMI Blog2021 (11) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... s set aside. It is further directed that the Adjudicating Authority to grant adjustment of the unutilised amount of ₹ 14,31,166/- against the demand payable by the assessee - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 50294 of 2021-SM - FINAL ORDER NO. 51902/2021 - Dated:- 13-10-2021 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri Rajesh Chhibber, Advocate for the appellant Shri Pradeep Gupta, Authorised Representative for the respondent ORDER The appellant is in appeal against disallowance of adjustment of demand of service tax, relating to the period prior to 30.06.2017, out of the cenvat credit lying to their credit as on 30.06.2017. 2. Brief facts of the case are that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse to the show cause notice, the appellant filed reply dated 24.08.2018. They did not contest the demand of service tax as alleged to be short paid. They further agreed to the amount of gross receipt at ₹ 96,29,000/-, as turnover less declared for the period 2015-16.. They thus agreed to the short payment of service tax of ₹ 15,39,919/-. The appellant also pointed out the amount of tax and interest already deposited, as follows:- Challan No. Date Amount (Rs.) Nature 17165 25.04.2017 1,43,707 Service Tax 00337 16.01.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he registered person shall not be allowed to take credit in the following circumstances, namely: - (i) where the said amount of credit is not admissible as input tax credit under this Act; or (ii) where he has not furnished all the returns required under the existing law for the period of six months immediately preceding the appointed date; or (iii) where the said amount of credit relates to goods manufactured and cleared under such exemption notifications as are notified by the Government. 6. Further, referred to Rule 117 of CGST Rules, 2017, which provides for the procedure for carried forward of the unutilised cenvat credit as on 30.06.2017. It is further observed that the appellant could have carried forward the amount of cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 140 of the CGST Act. The said amount cannot be utilised or adjusted other than the method, provided under Section 140 of the CGST Act. Accordingly, dismissed the appeal. Being aggrieved, the appellant is before this Tribunal. 9. Learned Counsel Shri Rajesh Chhibber appearing for the appellant urges that the learned Commissioner (Appeals) have committed a mistake of law in his conclusion. Section 140 of the CGST Act, clearly provides the entitlement to take transfer of credit to the GST regime, if an assessee who is liable to pay tax under the CGST Act wishes to take adjustment of unutilised credit. Section 140(1) contains the condition precedent i.e. a registered person shall be entitled to take, in his electronic credit ledger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technical difficulties in uploading the Form TRAN-1, and failed to take credit as carried forward to the GST regime, such facts are not applicable to this appeal. 11. Having considered the rival contentions, I am satisfied that there is no bar or disability under Section 140(1) read with Section 142 of CGST Act, 2017 on an assessee for claiming adjustment of the tax demand from the unutilised cenvat credit (lying to the credit as on 30.06.2017), which has not been carried forward to the GST regime. I further find that the Commissioner (Appeals) has committed a mistake of law. Accordingly, I allow the appeal and set aside the impugned order of the Commissioner (Appeals). I further direct the Adjudicating Authority to grant adjustment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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