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TMI Blog2022 (10) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Circular No. 39/12/2018 requesting for filing of TRAN-1 application. Simultaneously, under the fear of the possibility of the Application to the Nodal Officer being rejected, and owing to the time limitation for refund being one year, the appellant simultaneously filed refund claim application on 26.04.2018 under Section 11B of Central Excise Act, 1944 for "refund of Cenvat credit" of Rs.11,23,276/- lying in his Credit register on July 1, 2017. 1.2 The application and annexed documents were forwarded to the Range Office i.e. Central tax Range-131, Janakpuri for verification and scrutiny. The Range Officer in its report dated 07.01.2009 submitted that refund claim of Cenvat balance amounting to Rs.11,23,276/- under section 11B of Central Excise Act, 1944 is lying credit in the Cenvat account as on 30.06.2007 i.e. the day immediately preceding the appointed day of the introduction of Central Goods and Service Tax Act, 2017 but it has no legal standing and may not be sanctioned under Section 11B of Central Excise Act, 1944 read with Section 142(3) of CGST Act, 2017. Based thereupon, the aforesaid refund of Cenvat was rejected by the Assistant Commissioner, Central Tax, Delhi vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt(s) of Karnataka, Punjab and Haryana, and Rajasthan have been allowing the refund in cash pertaining to unutilized Cenvat credit under Section 11B. CESTAT also has upheld the refund, in cash, of unutilized credit that too under Section 11B of the Central Excise Act, 1944, on the ground that the Department cannot deny the refund of unutilized Cenvat credit, in absence of any specific provision barring such refund. Following cases have been relied upon by the appellants: (i) Union of India Vs. Slovak India Trading Company reported as 2006 (201) ELT 559 (Kar.) (ii) M/s. Welcure Drugs & Pharmaceuticals Ltd. Vs. Commr. of C. Ex., Jaipur 2018 (15) G.S.T.L. 257 (Raj.) (iii) M/s. Rama Industries Ltd Vs. Commissioner of Central Excise reported as 2009 20 STT 525 (Punj. & Har.) (iv) M/s. Shalu Synthetics Pvt. Ltd. Vs. Commissioner of C. Ex. & S.T., Vapi 2017 (346) E.L.T. 413 (Tri. - Ahmd.) (v) M/s. Shree Krishna Paper Mills & Ind. Ltd. Vs. C.C.E. & S.T., Gurgaon reported as 2019 (365) E.L.T. 594 (Tri.- Chan.) (vi) M/s. Bangalore Cables P. Ltd. Vs. Commissioner of C. Ex., Bangalroe-III reported as 2017 (347) E.L.T. 100 (Tri. - Bang.) 3.2 Learned Counsel for appellant further me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act." 6. I also observe that even in GST Act there are two transitional provisions that have been enacted providing for two possible solutions for transfer of unutilized credit balance: (i) Section 140 of the CGST Act, 2017 wherein the said credit could be electronically carried forward by filing of TRAN-1 up to the stipulated period of time. (ii) Section 142 of the CGST Act, 2017, which provides for the case refund of the unutilized Cenvat credit with only on rider that the same amount of Cenvat credit has not been carried forward to the electronic credit leger through TRAN-I. 7. The bare perusal reveals that at the time of implementation of GST Regime, the legislature had perceived as to what would happen to the credit of tax lying in stock as on the date of the introduction of GST, or to the credit balance lying unutilized. Therefore, in order to avoid the double taxation on the goods lying with the business person the Central govt under its wisdom, to pass on the benefit of the unutilized credit whether in inputs or otherwise as closing balance as appeared in ER-I Return filled by the assesses, has introduced above mentioned Transitional Provisions under Chapter XX in GS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n para 17 against the Revenue and in favour of the assessee. 9.1 Against the aforesaid decision SLP was dismissed by the Supreme Court in Union of India Vs. Slovak India Trading Co. Pvt. Ltd. - 2008 (223) E.L.T. A170 (S.C.) 10. Otherwise also if on the inputs the assessee had already paid the taxes on the basis that when the goods are utilised in the manufacture of further products as inputs thereto then the tax on these goods gets adjusted which are finished subsequently. Thus a right accrued to the assessee on the date when they paid the tax on the raw materials or the inputs and that right would continue until the facility available thereto gets worked out or until those goods existed. Hon'ble Apex Court in the case of Collector of Central Excise, Pune Vs. Dai Ichi Karkaria Ltd. - 1999 (112) E.L.T. 353 (S.C.), has been observed as under: "17. It is clear from these Rules, as we read them, that a manufacturer obtains credit for the excise duty paid on raw material to be used by him in the production of an excisable product immediately it makes the requisite declaration and obtains an acknowledgement thereof. It is entitled to use the credit at any time thereafter when making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was not allowed. (ii) That the Appellant then opted for another option under Section 142 ibid and filed application for refund claim on 26.04.2018. 14. Though Commissioner (Appeals) has relied upon the Circular No. 39/13/2018 dated 03.04.2018, para 8 thereof but the issue has been duly settled. Hon'ble High Court Kerala in the case of Naga Distributors Vs. Union of India reported as 2018(16) G.S.T.L. 15 (Ker.) has held about Glithces in GSTN that subsequent to the failure to upload Form GST TRaN-1 within stipulated time due to system error, if assessee applies to concerned Nodal Officer appointed in terms of C.B.I. & c. Circular No. 39/13/2018-GST, dated 3-4-2018 within two weeks, it is for Nodal Officer to facilitate assessee's uploading FORM GST TRAN-1 without reference to time frame, especially when uploading of said form was not possible for reasons not attributable to assessee. The authority was directed also to enable assessee to take credit of input tax available at time of migration. Also in the case of Leo Logistics Vs. Union of Inida reported as 2019 (22) G.S.T.L. 185 (Ker.), it was held that Transitional provisions i.e. Section 140 of Central Goods and Services Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpliance of procedures for redressal provided under Circular No.39/13/2018-GST dated 03.04.2018, the Noticee had written to the Nodal Officer, IT Grievance Redressal Committee, Delhi West CGST Department, EIL Building, Bhikaji Kama Place, RK Puram, New Delhi vide its letter dated 26.04.2019. In the said letter the Noticee had requested that he may be allowed to file FORM GST TRAN-1. However, his request was not acceded to by the learned adjudicating Nodal Officer. 16. In the given circumstances, the refund of said amount in cash remains the only possibility under transitional provisions of GST Act. Those provisions are to protect the claim under Section 11B of erstwhile Act. Accordingly, the appellant is held entitled for refund of amount in question. 17. In view of this discussion, I hold that even second ground of rejection of refund claim is not sustainable. 18. As a result of entire above discussion, it is held that Commissioner (Appeals) has ignored the relevant statutory provisions and has also failed to observe the judicial protocol while passing a mechanical order rejecting the impugned refund claim. Both the grounds of rejection are hereby overruled. The order under cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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