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TMI Blog2022 (6) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... r of appellant. - Service Tax Appeal No.40436 of 2021 - Final Order No. 40249/2022 - Dated:- 17-6-2022 - Ms. Sulekha Beevi C.S., Member (Judicial) Shri Mihir Deshmukh, Advocate for the Appellant Ms. K. Komathi, ADC (AR) for the Respondent ORDER Brief facts are that the appellant is engaged in providing dredging services and is registered with the department for the services rendered by them. They filed refund claim under section 11B of the Central Excise Act, 1944 on 5.2.2020 for the refund of unutilized CENVAT credit availed on Education cess, Secondary and Higher Education cess and Krishi Kalyan cess. The refund claim was filed on the basis of the judgment of the Hon'ble High Court of Madras dated 5.9.2019 in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal to hold that the assessee is eligible for refund of the balance amount of credit of cess lying in CENVAT account. He also relied upon the decision of the Tribunal in the case of Schlumberger Asia Services Ltd. Vs. CCE, Gurgaon 2021-TIOl-313-CESTAT-CHD to argue that in the said case, the Tribunal held that the refund claim with regard to Education cess, Secondary and Higher Education cess and Krishi Kalyan cess lying unutilized in the CENVAT account is eligible for refund after introduction of GST. 4. The learned AR Ms. K. Komathi supported the findings in the impugned order. 5. Heard both sides. 6. The issue is whether the appellant is eligible for refund of Education cess, Secondary and Higher Education cess and Kr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive for the Department also placed upon the decision of the Delhi High Court in Cellular Operators Association. This judgment was rendered in a Writ Petition that had been filed for quashing the notification dated 29.10.2015 and for a direction that the credit accumulated on account of cess should be allowed to be utilised for payment of service tax leviable on telecommunication services. The submissions of the petitioner was that the unutilised amount of cess, after it was exempted w.e.f. 01.03.2015, should be permitted to be utilized for payment for payment of tax on excisable goods and taxable services as it was subsumed in the central excise duty which had been raised in 2015. The High Court rejected this contention. 26. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t avail is a vested right as has held by the Supreme Court in Eicher Motors and Samtel India. 30. The appellant is, therefore, clearly entitled to the refund of the balance amount of credit of cess and the decision to the contrary taken by the Commissioner (Appeals) cannot be sustained. The order dated 12.06.2019 passed by the Commissioner (Appeals) is, therefore, set aside and the appeal is allowed with consequential reliefs, if any. 7. Further, in the case of Schlumberger Asia Services Ltd. (supra), on an identical issue, the Tribunal held that all the cess are eligible for refund. The relevant portion of the order is as follows:- 2. The facts of the case are that the appellant is providing various services. The cenvet cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Education Cess including Secondary Higher Education Cess has been abolished from 01.06.2015. The matter was adjudicated and refund claim was rejected. Hence, the appellant is in appeal before me. **** ***** ****** ******* 8. Now come to the issue whether the decision in the case of M/s Bharat Heavy Electricals Ltd (supra) can be relied in this case or not? 8.1 In the case of M/s Bharat Heavy Electricals Ltd (supra) this Tribunal laid down in law That Education Cess, Secondary Higher Education Cess and Krishi Kalyan Cess cannot be transferred to GST account and as they were lying unutilized in their cenvat credit account on 30.06.2017, the assesee is entitled to claim the refund thereof. In other words, if the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to lose this valuable right. Thus we find that the ratio of Apex courts judgment is applicable as decided in cases where the assessee could not utilize the credit due to closure of factory or shifting of factory to a non dutiable area where it became impossibly to use these credits. Accordingly the ratio of such cases would be squarely applicable to the appellant s case. Following the judgement of Hon ble Karnataka High Court in the case of 2006 (201) E.L.T. 559 (Kar) in the case of Slovak India Trading Co. Pvt Ltd. and similar other judgements/decisions cited supra, we hold that the assessee is eligible for the cash refund of the cessess lying as cenvat credit balance as on 30/06/2017 in their accounts. The decision of the larger bench in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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