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TMI Blog2023 (3) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant on 03.04.2018. Appellant submit that as per Article 265 of the Constitution of India, Government cannot retain the excess of tax paid and the same needs to be refunded. Admittedly no revised return as provided for in terms of Rule 7B of the Service Tax Rules, 1994 or under provisions of the Section 142 (9) of the CGST Act has been filed by the appellant. In para 4.6 and 4.7 of the order in original, Assistant Commissioner has recorded specific finding to this effect and impugned order upholds the same in para 11 and 12. It is settled provision in law that the when the statute provides a manner of doing the thing, then the thing has to be done in the prescribed manner only and all other manner are necessarily barred. Principles of unjust enrichment - HELD THAT:- The issue of unjust enrichment comes into picture only if the refund is otherwise found admissible. In the case under consideration if the refund is not found admissible, application of the principles of unjust enrichment need not be considered. Appeal dismissed. - Service Tax Appeal No. 86998 of 2019 - FINAL ORDER NO. A/85317/2023 - Dated:- 3-3-2023 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Viz. East West Seed International Ltd, Thailand which is not signed by the issuing person. The Claimant appears to be filed ST-3 return for the period 01.04.2017 to 30.06.2017 on 14.08.2017 wherein the claimant has shown value of 'Intellectual Property Services other than copyright' in the month of June, 2017 as Rs.2,28,27,342/-. The claimant themselves assessed the Service Tax liability and accordingly paid vide Challan No. 02701 dated 06.07.2017 amounting to Rs. 34,24,102/-. Sub-Rule (1) of Rule 7B of Service Tax Rules, 1994 which provides an assessee to submit a revised return, in Form ST-3, in triplicate, to correct a mistake or omission, within a period of [Forty Five days] from the date of submission of the return under rule 7. The claimant has appears to be not filed revised ST-3 return for the period April-June, 2017. As per Sub-Section 9(b) of Section 142 of the CGST Act, 2017 where any return, furnished under the existing law, is revised after the appointed day but within the time limit specified for such revision under the existing law and if, pursuant to such revision, any amount is found to be refundable or CENVAT credit is found to be admissible to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant Without prejudice to the above submission, the government cannot retain any amount, without any authority of law. Article 265 of the constitution of India, bars to collect any tax without any authority of law. The relevant extract is reproduced hereunder: 265. Taxes not to be imposed save by authority of law No tax shall be levied or collected except by authority of law. The finding of the ld. Commissioner (appeals) that selfassessed tax is not refundable, is erroneous. The Appellant also rely upon the decision of Cadila Healthcare Limited v. CST Service Tax, 2021 (4) TMI 1157 CESTAT Ahmedabad in the context of Section 70 of the Finance Act, 1994. Without prejudice, the appellant could not have filed revised return for the period in dispute and therefore, nonfiling of revised form st-3 return cannot be a ground to reject the refund under section 142(9)(b) of CGST Act, 2017 Section 142(9)(b) of the CGST Act contains transnational provisions for refund of the tax paid under the existing law with the Ld. Commissioner (Appeals) has been wrongly interpreted. In the present case, the Appellant has not filed the revised ST-3 and therefore Section 142(9)(b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of ST-3 is a procedural lapse is not acceptable. As per Para 13 of the O-in-A unless the assessment germane to an issue is varied or altered, the question of refunding the duty paid as self-assessment cannot be permitted. The appellant have not transferred the said amount to TRAN-1 filed under GST regime. The availment of cenvat credit is governed by the provisions of Cenvat Credit Rules, 2004, as they existed. It was open for the appellant to avail the cenvat credit after satisfying the required conditions governing availment of cenvat credit. There could be no estoppel to the appellant to avail the cenvat credit if it is legally available and within the parameters of Cenvat Credit Rules, 2004. The mere fact that they did not avail such cenvat credit would not entitle them for refund of purported service tax. Appellant paid such service tax of Rs. 34,24,102/-, voluntarily on its own volition and assessment. It is also not the appellant's case that they made payment of such service tax under protest or at any stage they lodged any protest formally by way of any letter addressed to the departmental officers. In accordance with the ratio of the following judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d [Interim Order No 40019/2021 dated 22.10.2021, in Service Tax Appeal No 40010/2020] Aditya Steel Rolling Mills Pvt Ltd. [2020 (41) GSTL 323 (T-Hyd)] 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Impugned order records the following findings for rejecting the appeal filed by the appellant:- 9. It is the contention of the appellant that they had filed the original ST-3 return for the period 01.04.2017 to 30.06.2017 on 14.08.2017 wherein they disclosed the invoices for trademark received from EWSILT. However, the agreement was signed and executed on 1.06.2017 followed with the issuance of credit note on 31.08.2017 and revised invoice was issued on 20.10.2017 by EWSILT. Therefore, the last date for filing the revised return in the present case was 45 days from 14.08.2017 viz 28.09.2017. Since, they issued the credit note on 31.08.2017 and the revised invoice was issued on 20.10.2017, the appellant could not revise the return in time provided for revision of return. 10. The lower authority have already considered the above contentions of the appellant in the impugned order and has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty as already stated by the appellant. Thus in the above circumstances, the refund claim does not qualify the relevant provisions of the CGST Act, 2017 and hence their rejection by the lower authority deserve to be upheld. 12. The transitional provisions regarding the dates of filing returns and recording of transactions of payment of the tax dues by the persons making such declaration is explicit and, therefore, there is no scope for any other interpretation. It is a settled law that salutary principle in the law is that anything prescribed to be done in particular manner, has to be done in that manner only. This authority being creature of the statute is therefore bound by the restriction prescribed in the law. The contention of the appellant that such non-filing of ST- 3 is a procedural lapse is not acceptable. As the appellant has cited no relaxatory provisions, their arguments lack any force. 13. One of the contentions raised by the appellant to assail the impugned order is that service tax paid on self assessment, as per the statutory provisions is valid collection of tax and that there is nothing in the said provisions to bar entitlement for refund in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er authority has not reckoned the issue with respect to the doctrine of unjust enrichment. It is observed that the appellant has also not submitted any grounds and evidences to rebut the presumption of having passed on the incidence of such duty to the customers or to any other person. Even then, if it is admitted that they have not passed the duty on further, it will not be possible to determine the same in any objective manner. In order to understand the doctrine of unjust enrichment, one needs to understand the concept of tax incidence, the shifting of the tax incidence and analyses of the same. In this regard, it would also be relevant to refer to such text reference from Encyclopedia Britannica cited in clause (iv) hereunder under the heading 'shifting and incidence'. What is a 'Tax Incidence' A tax incidence is an economic term for the division of a tax burden between buyers and sellers. Tax incidence is related to the price elasticity of supply and demand, and when supply is more elastic than demand, the tax burden falls on the buyers. If demand is more elastic than supply, producers will bear the cost of the tax. Analysis of Tax Inciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxation. Source: https://economicsconcepts.com/impact and incidence_of_tax.htm TAXATION: Shifting and incidence The incidence of a tax rests on the person(s) whose real net income is reduced by the tax. It is fundamental that the real burden of taxation does not necessarily rest upon the person who is legally responsible for payment of the tax. General sales taxes are paid by business firms, but most of the cost of the tax is actually passed on to those who buy the goods that are being taxed. In other words, the tax is shifted from the business to the consumer. Taxes may be shifted in several directions. Forward shifting takes place if the burden falls entirely on the user, rather than the supplier, of the commodity or service in question-e.g., an excise tax on luxuries that increases their price to the purchaser. Backward shifting occurs when the price of the article taxed remains the same but the cost of the tax is borne by those engaged in producing it-e.g., through lower wages and salaries, lower prices for raw materials, or a lower return on borrowed capital. Finally, a tax may not be shifted at all-e.g., a tax on business profits may reduce the net income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him and shall furnish to the Superintendent of Central Excise, a return in such form and in such manner and at such frequency as may be prescribed. Therefore, I find that the return filed under section 70 is conclusive and it is not open for the department to call the documents or other information to verify the return, unless the department has some reasonable grounds to believe that assessee has not paid service tax properly. The service tax paid on the basis of self-assessment as per the statutory provision is a valid collection of tax by the government and therefore, it is in no way refundable to the claimant who was liable to pay the same. 4.6 I also find that as per Sub-Rule (1) of Rule 7B of Service Tax Rules, 1994 which provides an assessee to submit a revised return, in Form ST-3, in triplicate, to correct a mistake or omission, within a period of [Forty Five days] from the date of submission of the return under rule 7. The claimant has not filed revised ST-3 return for the period April-June, 2017. 4.7 I also find that as per Sub-Section 9(b) of Section 142 of the CGST Act, 2017 where any return, furnished under the existing law, is revised after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent claim for the refund of excess service tax paid has been made by the appellant on 03.04.2018. Appellant submit that as per Article 265 of the Constitution of India, Government cannot retain the excess of tax paid and the same needs to be refunded. There is no dispute about the preposition made, however it has to be noted that after examining the provisions of Central Excise Act, 1944 vis a vis article 265 of the Constitution of India a nine judges bench of Hon ble Supreme Court has in case of Mafatlal Industries [1997 (89) ELT 247 (SC)], held as follows: 18. Second situation is where the tax is collected by the authorities under the Act by mis-construction or wrong interpretation of the provisions of the Act, Rules and Notifications or by an erroneous determination of the relevant facts, i.e., an erroneous finding of fact. This class of cases may be called, for the sake of convenience, as illegal levy. In this class of cases, the claim for refund arises under the provisions of the Act. In other words, these are situations contemplated by, and provided for by, the Act and the Rules. 19. The above distinction is not only accepted in all jurisdictions but is also not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s paragraph does not include that situation. In other words, we are dealing with a case where the duty was paid on account of mis-construction, mis-application or wrong interpretation of a provision of law, rule, notification or regulation, as the case may be.) Is it open to the manufacturer to say that the decision of a High Court or the Supreme Court, as the ease may be, in the case of another person has made him aware of the mistake of law and, therefore, he is entitled to refund of the duty paid by him? Can he invoke Section 72 of the Contract Act in such a case and claim refund and whether in such a case, it can be held that reading Section 72 of the Contract Act along with Section 17(1)(c) of the Limitation Act, 1963, the period of limitation for making such a claim for refund, whether by way of a suit or by way of a writ petition, is three years from the date of discovery of such mistake of law? Kanhaiyalal is understood as saying that such a course is permissible. Later decisions commencing from Bhailal Bhai have held that the period of limitation in such cases is three years from the date of discovery of the mistake of law. With the greatest respect to the learned Judges w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that in the face of the said provisions - which are exclusive in their nature - no claim for refund is maintainable except under and in accordance therewith. The second basic concept of law which is violated by permitting the above situation is the sanctity of the provisions of the Central Excises and Salt Act itself. The Act provides for levy, assessment, recovery, refund, appeals and all incidental/ancillary matters. Rule 11 and Section 11B, in particular, provide for refund of taxes which have been collected contrary to law, i.e., on account of a mis-interpretation or misconstruction of a provision of law, rule, notification or regulation. The Act provides for both the situations represented by Sections 11A and 11B. As held by a seven - Judge Bench in Kamala Mills, following the principles enunciated in Firm Illuri Subbaiya Chetty, the words any assessment made under this Act are wide enough to cover all assessments made by the appropriate authorities under the Act whether the assessments are correct or not and that the words an assessment made cannot mean an assessment properly and correctly made. It was also pointed out in the said decision that the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, however, suggested that this result follows only in tax matters because of Article 265. The explanation offered is untenable as demonstrated hereinbefore. As a matter of fact, the situation today is chaotic because of the principles supposedly emerging from Kanhaiyalal and other decisions following it. Every decision of this Court and of the High Courts on a question of law in favour of the assessee is giving rise to a wave of refund claims all over the country in respect of matters which have become final and are closed long number of years ago. We are not shown that such a thing is happening anywhere else in the world. Article 265 surely could not have been meant to provide for this. We are, therefore, of the clear and considered opinion that the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee s case. All claims for refund ought to be, and ought to have been, filed only under and in accordance with Rule 11/Section 11B and under no other provision and in no other forum. An assessee must succeed or fail in his ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no claim for refund can be entertained. The provision of Section 128 cannot be rendered otiose. The amendment has been made in order to simplify the procedure but the legal effect of the self-assessment is that of assessment. While processing self-assessment some exercise has to be done. Once it is accepted, it becomes an order of assessment. 20. Right to appeal is available to any person i.e. to the department as well as to importer/exporter against an order of self-assessment. Until and unless assessment order is modified and a fresh order of assessment is passed and duty redetermined, the refund cannot be granted by way of refund application. The refund authorities cannot take over the role of Assessing Officer. The officer considering refund claim cannot reassess an assessment order. An assessment order has to be questioned within the stipulated period of limitation. The refund application cannot be entertained directly under Section 27 unless the order of assessment is appealed against and is modified. 38. No doubt about it that the expression which was earlier used in Section 27(1)(i) that in pursuance of an order of assessment has been deleted from the amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, if an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for the refund which, if we may term it so, is in the nature of execution of a decree/order. In the case at hand, it was specifically mentioned in the order of the Assistant Collector that the assessee may file an appeal against the order before the Collector (Appeals) if so advised. (emphasis supplied) 40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) = (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of 24 ST/86998/2019 assessment stands, the duty would be payable as per that order of assessment. This Court has observed thus : 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) case (2000) 6 SCC 650. Once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or order : [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression Any person is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra). 4.4 Hon ble High Court of Rajasthan in case of Central Office Mewar palace Org [2008 (12) STR 545 (Raj)] in matters relating to Service tax, observed as follows: 6. The matter was carried in further appeal before the learned Tribunal, and surprisingly, the Tribunal dismissed the appeal by adopting yet different reasoning, viz. that since the assessee had not challenged the assessment order, the claim of refund cannot be entertained, so as to indirectly challenge the assessment order, without filing statutory appeal, against the assessment order. It was also found, that in the case in hand, the order is appealable and no appeal having been filed, the claim of refund has no merit, and the appeal was dismissed. 7. We have heard learned counsel for the parties, and have gone through the relevant provisions of the Finance Act, 1994, enacting provisions for levy of service tax, so also the relevant provisions of Central Excise Act, as well. 8. At the outset, it may be observed, that under the scheme of things, starting from Section 73 onwards it is clear, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Admittedly, while clearing the goods on payment of excise duty, the procedure for removal of goods on provisional basis has not been followed. The Apex Court in the case of Metal Forgings v. Union of India [2002 (146) E.L.T. 241 (S.C.)] has held that in the absence of order of provisional assessment, the clearance cannot be said to be on provisional assessment basis. 8. Where the goods are cleared under the self removal procedure basis on approved classification list and approved price list, the clearances are on self assessment and unless such self assessment is varied or altered, the question of refunding the duty paid on self assessment does not arise at all. The Apex Court in the case of M/s. Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) [AIR 2004 S.C. 5115 = 2004 (172) E.L.T. 145 (S.C.)] has held that validity of an assessment cannot be considered while dealing with the refund claim. The said ratio would apply to the self assessment as well. 4.6 The decision of Hon ble Rajasthan High Court has been over-ruled by the three judges bench of Hon ble Supreme Court in case of ITC Ltd., referred above, observing as follows: 45. Reliance was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment. SECTION 85. Appeals to the Commissioner of Central Excise (Appeals). (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Principal Commissioner of Central Excise or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). The Service Tax Rules, 1994:- Rule 2 (b) (b) assessment includes self-assessment of service tax by the assessee, reassessment, provisional assessment, best judgment assessment and any order of assessment in which the tax assessed is nil; determination of the interest on the tax assessed or reassessed; 7. Returns (1)Every assessee shall submit a half yearly return in From ST- 3 or ST-3A or ST3C,(Inserted vide Notification 48/2016 Service tax) as the case may be, along with a copy of the Form TR-6, in triplicate for the months covered in the half-yearly return. (2)Every assessee shall submit the half yearly return by the 25th of the month following the particular half-year. Provided . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or such other person shall produce such document or furnish such information.] (4) Where it is found on verification, examination or testing of the goods or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods. (5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification issued therefor under this Act and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. (6) Where re-assessment has not been done or a speaking order has not been passed on re-assessment, the proper officer may audit the assessment of duty of the imported goods or export goods at his office or at the premises of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governed by unamended provisions of Section 17. Since I find the provisions under the Customs Act,1962 as considered by the Hon ble Apex Court in the case of ITC Ltd, to be pari materia with the provisions contained in the Finance Act, 1994 hence the observations made by the Hon ble Supreme Court in case of the ITC Ltd., though by referring to the provisions of the Customs Act, 1962 will be applicable in the case of Service tax. 4.8 Thus I do not find any merits in the submissions of the appellant to the effect that the refund application can be considered without revision of the return of the self assessment made by them while filing the ST-3 return. It is worth noting the provisions in Service tax law provide for the revision of the return by the assessee himself. Rule 7B of the Service Tax Rules, 1994 reads as follows: 7B. Revision of Return (1) An assessee may submit a revised return, in Form ST-3, in triplicate, to correct a mistake or omission, within a period of ninety days from the date of submission of the return under rule 7. The scheme of Service Tax Return was carried forward in the CGST Act, 2017, wherein Section 142 (9) provided as follows: ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial or investigation. (Vide: Union of India v. Maj. Gen. Madan Lal Yadav, AIR 1996 SC 1340; and Lily Thomas v. Union of India Ors., AIR 2000 SC 1650). Nor can a person claim any right arising out of his own wrong doing. (Juri Ex Injuria Non Oritur). b. Mahender Singh [2022 SCC OnLine SC 909] 15. A three Judge Bench of this Court in a judgment reported as Chandra Kishore Jha v. Mahavir Prasad Ors. [(1999) 8 SCC 266], held as under: 17....................It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (See with advantage: Nazir Ahmad v. King Emperor [(1935- 36) 63 IA 372 : AIR 1936 PC 253 (II)] , Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322 : 1954 SCR 1098] , State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 SCWR 57] .) An election petition under the rules could only have been presented in the open court up to 16-5- 1995 till 4.15 p.m. (working hours of the Court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation. That, however, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered. 4.11 Appellant have relied upon the provisions of Section 142 (3), 142 (5) and 174 of CGST Act, 1994 to argue that there claim under section 11 B is justified. However the arguments advanced by the appellants have been considered and rejected by the Hon ble High Court of Jharkhand in case of Rungta Mines [Order dated 15.02.2022 in WP No 2245/2020, (2022 (2) TMI 934 Jharkhand High Court)] holding as follows: Interpretation of section 142(3) read with section 140(1), 140(5) and section 174 of CGST Act vis-a vis the facts of this case. 39. The relevant portions of the aforesaid sections as relied upon by the learned counsel for the petitioner during the course of arguments are as under. Section 140 (1) and (5) of the CGST, Act reads as under:- 140. (1) A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, the amount of CENVAT Credit of eligible duties carried forward in the return relating to the period ending with the day immediately preceding the appointed day, furnished by him under the existing law within such time and in such manner as may be prescribed: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as under :- 173. Amendment of Act 32 of 1994 Save as otherwise provided in this Act, Chapter V of the Finance Act, 1994 shall be omitted. 1 74. Repeal and saving (1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (1 of 1944) (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Additional Duties of Excise (Textiles and Textile Articles) 26 Act, 1978 (40 of 1978), and the Central Excise Tariff Act, 1985 (5 of 1986) (hereafter referred to as the repealed Acts) are hereby repealed. (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (32 of 1994) (hereafter referred to as such amendment or amended Act , as the case may be) to the extent mentioned in the sub-section (1) or section 173 shall not i. revive anything not in force or existing at the time of such amendment or repeal; or ii. affect the previous operation of the amended A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appointed date and pending on the appointed 27 date apart from the refund applications filed on or after the appointed date. b. Further the refund application should be for refund of any amount of CENVAT Credit, duty, tax, interest or any other amount paid under the existing law. c. Such application filed before, on or after the appointed day is to be disposed of in accordance with the provisions of existing law. d. If any amount eventually accrues the same is to be refunded in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11-B of the Central Excise Act, 1944. e. It also provides that where any claim for refund of CENVAT Credit is fully or even partially rejected, the amount so rejected shall lapse. f. The second proviso provides that no refund shall be allowed of any amount of CENVAT Credit where the balance of the said amount as on the appointed day has been carried forward under the CGST Act. 41. Thus, section 142(3) of CGST, Act clearly provides that refund application with respect of any amount relating to CENVAT Credit, duty, tax, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned orders whose details have already been stated above. 44. Under the provisions of section 11B the right to claim refund was conferred not only to the assessee but also to such classes of applicants as notified by the central government and also covers situations arising out of judgements of courts and tribunals. On the appointed date there could be claims of refund of any amount of CENVAT Credit, duty, tax, interest or any other amount paid under the existing law in connection with which the applications for refunds were pending or time limit for claiming refund was yet to expire or may crystalize on account of any judgement of courts or tribunals in relation to pending litigations. These are some of the situations which would be covered by the miscellaneous transitional provisions as contained in section 142(3) of CGST, Act which would continue to be governed by section 11B(2) of Central Excise Act, 1944. 45. The provision of section 142(3) does not entitle a person to seek refund who has no such right under the existing law or where the right under the existing law has extinguished or where right under the new CGST regime with respect to such claim has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were received by the petitioner in the month of April 2017 and invoice was also generated in the month of May 2017. 49. In the peculiar facts of this case, the petitioner did not claim transitional credit but claimed the impugned amount of service tax on port services as credit in their ST-3 return which they were admittedly not entitled as they were assessee under service tax only on reverse charge mechanism and admittedly the port services availed by the petitioner was not covered under reverse charge mechanism. Thus, the petitioner on the one hand illegally took credit of service tax on port services as credit in their ST-3 return and on the 30 other hand filed application for refund of the same amount under section 142(3) of the CGST, Act which is certainly not permissible in law. The authorities have rightly considered these aspects of the matter also while rejecting the application for refund filed by the petitioner. 50. It is not in dispute that the petitioner has claimed the credit of service tax involved in the present case paid on port services as input service in ST-3 return filed on 22.09.2017, though they were not entitled to claim such a cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed time and accordingly could have claimed transitional credit through TRAN-1 under section 140 of CGST, Act. Thus, late receipt of the original invoice which has been cited as the reason for failure to claim CENVAT Credit under the existing law and transitional credit under section 140(1) of the CGST, Act was wholly attributable to acts and omissions of the petitioner and its service provider of the port services and the respondent authorities had no role to play. The petitioner had failed to avail the opportunity to claim CENVAT Credit of service tax on port services in terms of the existing law read with section 140 of CGST, Act and had no existing right of refund on the date of coming into force of CGST, Act. The petitioner having not used the port services for export was not entitled to claim refund under the existing law. The petitioner was also not entitled to refund on account of the fact that the petitioner had already taken credit of the service tax paid on port services in ST-3 Return of service tax although admittedly the petitioner was not entitled to take such credit in ST-3 Return. On account of aforesaid three distinct reasons the petitioner was rightly held to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand violated the provisions of law while filing his service tax returns and claimed the amount as input service and thereafter filed his petition for refund on 28.06.2018 referring to Section 142(3) of the CGST Act. The petitioner never had a right to claim refund under the existing law and had failed to exercise their right to claim CENVAT Credit as per law and wrongly claimed the impugned amount as credit in Service Tax Return (S.T. 3 return). 55. In view of the aforesaid findings, I do not find any reason to interfere with the findings and reasons assigned by the adjudicating authority as well as the appellate authority rejecting the application for refund filed by the petitioner under section 11B of Central Excise Act read with Section 142(3) and 174 of CGST Act. The impugned orders are well reasoned orders calling for no interference. Accordingly, this writ petition is dismissed. 4.12 Authorized representative has referred to number of other decisions to support the case of revenue. I find that those decisions are on the same issues as I have discussed above and on the basis of the decisions as above conclude in favour of revenue and hence do not take each decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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