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TMI Blog2022 (2) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... horised Representative for the Respondent ORDER The issue involved is whether the appellant-manufacturer of Lead and Zinc Concentrates which are dutiable whether they are entitled to refund of unutilized Cenvat credit of i) education cess ii) Secondary and Higher Education Cess, lying unutilized (credit balance) as on 30th June 2017. 2. The Appellant is engaged inter alia in the manufacture of Lead and Zinc Concentrates falling under Chapter 26 of the First Schedule to the Central Excise Tariff Act, 1985, and also availing Cenvat credit on various inputs, capital goods and input service in terms of the provisions of the Cenvat Credit Rules, 2004 (Credit Rules). 3. The Appellant was regularly filing Central Excise ER-1 returns, and as on 30.06.2017, the Appellant was having balance of eligible Cenvat credit of ₹ 13,18,02,879/- (in respect of Central Excise Registration No. AAACH7354KEM070) and ₹ 3,65,83,241/- (in respect of Central Excise Registration No. AAACH7354KXM003) in its ER-1 returns for June 2017. 4. Out of the aforesaid amounts, Appellant had transitioned the amount of ₹ 13,05,81,973/- and ₹ 3,49,84,516/- respectively, to GST regim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) upheld the allegations contained in the SCN entirely and rejected Appellant s refund claims and recorded the following findings: The definition of eligible duties and taxes under Section 140 of the CGST Act, was amended retrospectively w.e.f. 01.07.2017, to exclude Cess amounts. Further, credit of Cess amounts is to be availed and utilised only for payment of the Cess. Since Cess amounts are not levied under GST, the same are not meant to be transitioned in GST. Thus, credit of such amounts is not available for utilization towards GST. Accordingly, Appellant did not transition the credit of Cess amounts in GST via TRAN-1. Moreover, as per the transitional provisions under CGST Act, credit balance not transitioned in GST regime shall lapse. The Appellant cannot circumvent the said provisions by filing refund under Section 142(3) of the CGST Act. There is no provision either in the Credit Rules or in Section 11B, which provides for refund of Cess amounts. The refund of Cenvat credit arises only in respect of goods exported as per rule 5 of the Credit Rules. Thus, Section 142(3) is not meant to cover refund of Cenvat credit, which is not eligible for transition in GST via ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount as on the appointed day has been carried forward under this Act. (emp.supp). 11.2 A bare perusal of above provision indicates that every refund claim of inter alia Cenvat credit or any other amount paid under the existing law, shall be disposed of in accordance with the provision of existing law and any amount eventually accruing shall be paid in cash. The said provision is notwithstanding anything to the contrary contained under the provisions of existing law, other than Section 11B(2). The provision further states that the refund amount which is fully or partially rejected, shall lapse. And, where the Cenvat credit amount has been transitioned in GST, refund of such amount shall not be allowed. 11.3 The term existing law is defined under Section 2(48) of the CGST Act, to mean any law, notification, order, rule or regulation relating to levy and collection of duty or tax on goods or services or both, passed or made before the commencement of this Act by Parliament or any Authority or person having the power to make such law, notification, order, rule or regulation . Thus, in respect of the Appellant s refund claim in the present case, existing law means the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the parties to the said proceedings and at the same time, such interim order does not destroy the binding effect of the decision of this Tribunal, as a precedent, because while granting the interim order, the High Court had no occasion to lay down any proposition of law inconsistent with the one declared by the Tribunal. Therefore, the decision of this Tribunal in the case of Bharat Heavy (supra) is still a valid law and has precedential value. Reliance in this regard is placed upon the following judgments: Shree Chamundi Mopeds Ltd. v. Church of South Trust Asociation CSI Cinod Secretariat, Madras, AIR 1992 SC 1439 Niranjan Chatterjee Ors v. State of West Bengal Ors., 2007 SCC Online Cal 283 Abdul Rahiman v. The District Collector, Malappuram Another, 2009 SCC Online Ker 4358 12. Accordingly, the learned Counsel prays for allowing the Appeal with consequential relief. It is also urged that the refund application are not time barred as there is no application of Section 11(B) of the Central Excise Act, as these refunds arise due to transitional provisions under the CGST Act r/w the Rules thereunder. 13. The learned Authorised Representative for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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