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TMI Blog2022 (10) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... nger apply. But the issue now arises as to whether the 100 per cent penalty imposed for the remainder of the claim, to the extent of Rs.30,73,908/-, should also be interfered with. The assessee refers to Sections 73 and 74 of the Act of 2017. The assessee brings out the distinction between Section 73 and the strict applicability of Section 74 when there is an attempt by the assessee to defraud the revenue by making any misrepresentation or by suppression of material facts - The assessee suggests that since it was a huge sum which had been lost to the assessee, the assessee merely invoked the discretion of the Department in allowing the claim at a later stage since the assessee had not availed of it, whether by mistake or oversight, at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of July 14, 2021 passed in connection with a show-cause notice dated July 31, 2019. 2. The matter pertains to the transitional period of switching over from the previous sales tax regime to the GST regime. In the discussion in Amrit Cement Limited, Section 140 of the Central Goods and Services Tax Act, 2017 fell for consideration and the cenvat credit claimed by the assesse was allowed in terms of the appellate order upon noticing, inter alia, Rule 117 of the Central Goods and Services Tax Rules, 2017 pertaining to "eligible duties and taxes". 3. On behalf of the Department, it is submitted that the impugned appellate order dealt with the entire claim of Rs.6,86,73,062/- in two parts: the first pertained to the cenvat credit of Rs.6,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent of Rs.2,17,30,566/- and not the balance amount of Rs.30,73,908/- that was also available, in terms of the exemption notification No.20/2007 issued by the Central Excise authorities on April 25, 2007, the assessee was deemed to have abandoned such part of the claim. Indeed, the Department points out that the refund claim of Rs.2,17,30,566/- was honoured and the assessee has no grievance in such regard. 6. Section 140 of the Act of 2017 permits a cenvat credit to be carried forward except in three situations which are expressly indicated in the provision. These three situations are covered by the proviso to the substantive provision. The credit would not be available when it is not admissible as per the input tax credit under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal amount of Rs.30,73,908/- which it subsequently sought to carry forward in its TRAN-1. When an exemption is granted, it is to be seen as an exception to the general rule. Exemptions may be granted hedged with conditions. Since it is a benefit which is specially conferred to a person or a class of persons, the benefit has to be taken with the conditions and not severed therefrom. The benefit of exemption in this case was that the entirety of the credit available would first be adjusted before the balance paid by way of cash and refund sought only of the cash payment. In the assessee not availing of the entirety of the credit due to it on June 30, 2017, it was not entitled to make a further claim in such regard and is deemed in law to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to defraud the revenue by making any misrepresentation or by suppression of material facts. The assessee submits that apart from the fact than an amount in excess of Rs.30 lakh would be a loss to the assessee, there was no attempt by the assessee to mislead the Department or suppress any material facts in making the claim for the amount of Rs.30,73,908/- in the TRAN-1 filed by the assessee. The assessee suggests that since it was a huge sum which had been lost to the assessee, the assessee merely invoked the discretion of the Department in allowing the claim at a later stage since the assessee had not availed of it, whether by mistake or oversight, at the time of claiming refund for the month of June, 2017. 17. Though the Department veheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellate order limited to such sum is not interfered with. 20. If, as a consequence of this order, any money is payable by the assessee to the Department in respect of the matters covered herein, such payment should be made within 30 days from date, failing which the consequences will follow in accordance with law. It is recorded that the assessee claims that no further payment is required to be made. 21. Accordingly, WP (C) No.287 of 2022 is allowed by setting aside the appellate order dated July 14, 2021 to the extent that it disallowed the petitioning assessee's claim of Rs.6,55,99,154/- and by upholding the appellate order to the extent that it rejected the balance claim of Rs.30,73,908/-. Further, the penalty imposed by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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