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TMI Blog2022 (10) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... t that deals with claim for CENVAT Credit after the appointed date under the existing law. It is an admitted fact of the parties that the said CENVAT Credit balance was not carried forward to the Appellant s account on the appointed date since it was not due on the said day also. Therefore, in view of clear provision contain under Section 142(6)(a) of the CGST Act, Claimant/Appellant is eligible to get the refund of credit by cash except where unjust enrichment is alleged or established against the Appellant. The Appellant is also otherwise eligible to go for availment of transitional credit through filing required forms in Tran-I as per the order passed by the Hon'ble Supreme Court in UNION OF INDIA ANR. VERSUS FILCO TRADE CENTRE PVT. LTD. ANR. [ 2022 (7) TMI 1232 - SC ORDER] but in view of the observation of this Tribunal read with Section 142(6)(a) of the CGST Act that such CENVAT Credit amount shall be paid to the Appellant in cash, it can t avail dual benefits once order of this Tribunal is duly complied by the Respondent- Department by the closing date of the window. The Appellant is eligible to get refund of Rs.11,04,057/- paid against CVD and SAD which appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... areddy reported in 2019 (28) GSTL 244 (Tri.-Hyd.) had given a finding that in view of provision for a separate Appellate Tribunal under CGST Act, CESTAT cannot apply the provisions of CGST Act to decide any issue. Learned Counsel for the Appellant in submitting decision of this Tribunal of the Principal Bench at Delhi made in the case of Flexi Caps and Polymers Pvt. Ltd. Vs. Commissioner of CGST Central Excise, Indore (Date of Judgment 15.09.2021) as well as findings made by the Bombay Bench of Tribunal in the case of M/s. Oil States Industries India Pvt. Ltd. Vs. Commissioner of CGST and Central Excise, Raigad (Date of Judgment 05.08.2022) had argued that the CESTAT had given clear finding on the issue by affirming that it has jurisdiction under Section 142 read with Section 174 of the CGST Act to hear and decide similar appeals. 4. Jurisdiction being preliminary issue to be decided at the first instance, I consider it proper to take up the same before proceeding into the merit of the appeal. (i) Having regard to the provision contained in 174(2)(5) of the CGST Act which has clearly stipulated that repeal of Excise Act and amendment of Finance Act, 1994 shall not affect any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. During argument, learned Counsel for the Appellant Mr. Ganesh Kumar submitted that there is no denying of the fact that Appellant has been eligible to avail CENVAT Credit under the old tax regime but due to change in the application of law, it was put beyond any recourse to avail the credit for which Appellant had appropriately sought relief under Section 11B of the Central Excise Act read with Section 142(3) and 142(6) of the GST Act for refund of the amount so as to protect it s vested right. In placing reliance on the judgment of this Tribunal passed in the case of Srinivasa Hair Industries Vs. CCE, Chennai-II reported in 2016-TIOL-1203-CESTAT-MAD, he further submitted that it is a settled principle of law that where utilisation of CENVAT Credit becomes impermissible, cash refund under Section 11B of the Central Excise Act is available to the assessee. Referring to Article 265 of the Constitution of India he argued that when the mandate of the Constitution is that no tax can be collected without authority of law, it is incumbent upon the Respondent-Department to justify its retention with itself when there is a bonafide claim for re-payment/re-credit to the assessee. While d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst which credit is receivable after the appointed date and Appellant had not sought recourse of the same, for which refund is impermissible as Section 142(3) of the CGST Act permits refund of CENVAT Credit which is admissible under the existing law (Central Excise Act) and as no cash refund was permissible to the Appellant under the then Excise law, Appellant is not entitled to get the benefit, for which the reasoned order passed by the Commissioner (Appeals) need not be interfered with. 8. Upon hearing the Counsels from both sides and after perusal of the case record, it is apparent that Appellant s eligibility to take credit of the duties paid as CENVAT Credit is undisputable and only because of procedural aberration occurred during transition to GST period, Appellant could not take the credits in its electronic ledger in the GST regime, for which it sought for refund such a contingency is perhaps foreseen by the legislature for which contingent provision is well enumerated in Clause 6(a) of Section 142 of the CGST Act that deals with claim for CENVAT Credit after the appointed date under the existing law. It reads:- 6(a) every proceeding of appeal, review or reference ..... X X X X Extracts X X X X X X X X Extracts X X X X
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