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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 ..... d 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 the case of Sutherland Global Services Pvt. Ltd. Vs. UOI in W.P. No. 4773/2018. 2. They had carried forward the CENVAT credit in respect of Education cess, Secondary and Higher Education cess and Krishi Kalyan cess to TRAN-1 after the introduction of GST. Later, on the insistence of the department, they reversed the same. Pursuant to the decision of the Hon'ble High Court in Sutherland Global Services Pvt. Ltd. (supra), they filed refund claiming refund of the Education cess, Secondary and Higher Education cess and Krishi Kalyan cess lying unutilized in their CENVAT account. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Krishi Kalyan cess lying unutilized in their CENVAT account. The Tribunal in the case of Emami Cement Ltd. (supra) on identical issue observed as under:- "2. The appellant is engaged in the business of manufacture of clinker and cement. Prior to 01.03.2015, cess was leviable on goods manufactured by the appellant, in addition to excise duty, and the appellant availed CENVAT credit under the provisions of the CENVAT Credit Rules 2004 4 on cess paid on procurement of goods and services. However, the notification dated 01.03.2015 exempted levy of the cess on all goods falling in the First Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 present case, the plea of the appellant is not for adjustment of the credit on cess amount against payment of excise duty or service tax, but it is for refund of credit accumulated on account of payment of tax on cess. This decision would, therefore, not help the respondent. 27. Learned authorised representative also place reliance upon the notification dated 07.12.2015 issued by CBEC to contend that a policy decision had been taken not to allow utilisation of accumulated credit of cess, after cess had been phased out and it is reproduced below: "Discussion & Decision The conference after discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is as follows:- "2. The facts of the case are that the appellant is providing various services. The cenvet credit of various duties and services paid by 2 ST Appeal No. 60095 of 2021 them and Education Cess, Secondary & Higher Education Cess, Krishi Kalyan Cess were lying unutilized in their cenvet credit account and the appellant could not utilize the same till 30.06.2017. On 01.07.2017, the GST Regime came in force and the credit lying in the account was allowed to be transferred under GST Regime. The appellant took the cenvat credit lying unutilized in their cenvat credit account of services, goods, Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess to their GST account. Later on, an amendment came on 30.08. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account on 30.06.2017, the assesee is entitled to claim the refund thereof. In other words, if the appellant could have filed the refund claim before 30.06.2017 of Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess, the same is admissible to the appellant. The same view has been taken by this Tribunal in the case of M/s Bharat Heavy Electricals Ltd (supra) in para 4, which is reproduced herein below: "4. We have carefully gone through the rival arguments. There is no dispute that on 01/07/2017, the cesses credit validly stood in the accounts of the assessee and very much utilizable under the existing provisions. The appellants could not carry over the same under the GST regime. Thus the appellants were in a position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess lying as cenvat credit balance as on 30/06/2017 in their accounts. The decision of the larger bench in the case of Steel Strips cited by the learned Departmental Representative could not be applicable in view of the contradictory decisions of High Courts on the same issue." 9. In view of the above observations, I hold that the appellant is entitled to file the refund claim; accordingly, the impugned order is set aside. The refund claim is allowed which is subject to verification of the records. 10. The appeal is disposed of in the above terms." 8. Following the above decisions, I am of the view that the rejection of refund is not justified. The impugned order is set aside. The appeal is allowed with consequential reliefs, if any. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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