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TMI Blog2022 (2) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed before the introduction of GST, provisions of Section 142(3) of the Central Goods and Service Tax Act, 2017, will be not applicable to the instant case of the appellant and appellant is not entitled for the cash refund as requested. Hence, I agree with adjudicating authority, as regards to sanction of Refund of Rs. 8,47,496/- by way of credit in their cenvat account. Held accordingly. 8.2 The appellant has also relied upon the case law of 2010 (259) ELT. 713(Tri-Del) CCE, Jalandhar V/s. Kochar Sung-Up Acrylic Ltd. The above judgement is not applicable in this case as the facts are different from the present case. I agree with the findings of the adjudicating authority. Held accordingly. 9. I observe that the appellant has contended in the appeal memo that in the instant case interest is admissible from the date of payment of duty. 9.1 [ have gone through the provisions of Section 11BB of the Central Excise Act, 1944 which states that the interest is chargeable when refund is not made within three months from the date of receipt of application. The adjudicating authority has therefore rightly held that the appellant is not eligible for interest on the said refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals) which was rejected by the impugned order and hence this appeal. 3.1 I have heard Shri V Ravindran, Advocate for the Appellant and Shri Sanjay Hasija, Superintendent, Authorized Representative for the revenue. 3.2 Arguing for the appellants learned counsel submits- * The denial of refund claim in cash to them by the impugned order is contrary to the provisions of Section 142 (3) and 142 (6) (a) of Central Goods and Service Tax, Act, 2017. * Section 2 (10) of the said Act defines the " 'Appointed day' to mean the date on which the provisions of this Act shall come into force." * In following decisions the issue has been adjudicated in the favour of appellants: * Toshiba Machine (Chennai) P Ltd [2019 (27) GSTL 216 (T-Chennai) * Veer O Metals Pvt Ltd [2021 (4) TMI 117 (CESTAT Bangalore) * Interest in the present case is admissible from the date of deposit * Soorajmull Baijnath Industries Pvt Ltd. [2021 (8) TMI 1131 (CESTAT Chandigarh)] * Ebiz Com Pvt Ltd [2016 (9) TMI 1274 (Allahabad High Court)] * The refund claim in the present case has been filed under Section 11B of the Central Excise Act, 1944 and not under Rule 5 of the CENVAT C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er appellant suo motto on 01.06.2017 reversed the credit taken in their book of accounts on 24.05.2017, without any directive or prompting by the jurisdictional authorities as they proposed filing of appeal against the order dated 05.05.2017. Along with the synopsis dated 28.10.2021 filed by the appellant and received in registry on 01.11.2021, appellants have filed a detailed date chart leading to the present appeal. The date chart is reproduced below: 4.7 From the date chart as filed by the Appellant it is observed that appeal was filed by the appellant on 11.07.2017. 4.8 Section 142 (3) and (6)(a) of the Central Goods and Service Tax Act, 2017 provided 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notified as 22.06.2017. The appeal in the present case has been filed by the appellant before the Commissioner (Appeals) on 11.07.2017. Thus the finding of the Commissioner (Appeal) in para 8.1 and 8.2 of the impugned order cannot be faulted with. 4.11 In the synopsis dated 16.02.2022 filed by the Appellant, received in registry on 17.02.2022, Appellant counsel has specifically stated, "Without prejudice to the facts and circumstances that in the present case, the cash refund sought was made under section 11 B of CEA and not under Rule 5 of CCR {Specific facts and grounds for cash refund have been explained in the ground of appeal} in the grounds of appeal. In the following case laws it has been consistently held that EOU's are also entitled to cash refund under Rule 5 of CCR, 2004." I do not dispute that EOU's can claim cash refund in terms of Rule 5 of CCR, 2004. In fact Rule 5 is only for the cash refund of the accumulated credit on account of goods exported under bond or letter of undertaking. Admittedly the present case is not in respect of any claim made for the refund of accumulated credit as per Rule 5, but is claim made under Section 11B for the duty erroneously pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on." But, surely, it is high time for the judiciary in India too to part its ways from the principle of Westminister and the alluring logic of tax avoidance. We now live In a welfare state whose financial needs, if backed by the law, have to be respected and met. We must recognize that there is behind taxation laws as much moral sanction as behind any other welfare legislation and it is a pretence to say that avoidance of taxation is not unethical and that It stands on no less moral plane than honest payment of taxation. In our view, the proper way to construe a taking statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally, or liberally, nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax, and whether the transaction is such that the judicial process may accord its approval to it. A hint of this approach is to be found in the judgment of Desai, J. in Wood Polymer Ltd. v. Bengal Hotels Limited (40 Company Cases, 597) where the learned judge refused to accord sanction to the amalgamation of companies as it would lead to avoidance of tax. It is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxing authorities to unravel the device and to determine the true character of the relationship But the legal effect of a transaction cannot be displaced by probing into the substance of the transaction. In Jiyajeerao Cotton Mills Ltd. v. Commissioner of Income tax and Excise Profits Tax Bombay ([1958] 34 I.T.R. 888.) this Court observed: "Every person is entitled so to arrange his affairs as to avoid taxation but the arrangement must be real and genuine and not a sham or make-believe,..." The Gujarat High Court in the case of Commissioner of Income tax v. Sakarlal Balabhai ([1968] 69 I.T.R. 186) said: "Tax avoidance postulates that the assessee is in receipt of amount which is really and in truth his income liable to tax but on which he avoids payment of tax by some artifice or device. Such artifice or device may apparently show the income as accruing to another person, at the same time making it available for use and enjoyment to the assessee as in a case falling within section 44D or mask the true character of the income by disguising it as a capital receipt as in a case falling within section 44E or assume diverse other forms .... But there must be some artifice or device ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a colorable device created by the appellant to claim the benefit which was not due. All could have been avoided and appellant could have carried forward the Cenvat Credit availed by them in their book of accounts on 24.05.2017 as per the order dated 05.05.2017 to the GST regime. But it is also settled principle in law that nobody should be allowed the benefit of his own wrongs. Reference is made to the observations of Hon'ble Apex Court in the case of Devendra Kumar [(2013) 9 SCC 363] "23. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. "Subla Fundamento cedit opus"- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus Commodum Capere Potest De Injuria Sua Propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide: Union of India v. Maj. Gen. Madan Lal Yadav, AIR 1996 SC 1340; and Lily Thomas v. Union of India & Ors., AIR 2000 SC 165 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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