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TMI Blog2024 (1) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... dit. Since there is no provision under the present GST regime to take the Cenvat Credit, they have filed the refund claim under Section 142(3) of the CGST Act 2017. After due process, the Adjudicating Authority rejected their refund claim on the following ground: 74. In their submission before the personal hearing on 28.08.2020, the authorised representative on behalf of the claimant stated that they did not pay service tax before GST for which period it was payable and they admitted that they had paid the service tax amount only after the tax liability was detected by the audit after introduction of GST. They have not mentioned the duty elements in their last return under the existing law ST3 return. No where in the Section 142(3) CGST A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Commissioner (Appeals). The Commissioner (Appeals) has dismissed appeal by holding as under: 8. The appellant's contention in appeal is that since the existing law has been subsumed by the CGST Act, 2017 refund of such credit in cash can be granted under the provisions of Section 142(3) of the CGST Act, 2017. The said provisions of Section 142(3) of the CGST Act, 2017 are reproduced hereunder for ready of reference: "Section 142 (3): Every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Credit. There is no such provision either under the Finance Act, 1994 or Section 11B of the Central Excise Act, 1944 relevant for claiming refund. Further, there are no such Notifications, Orders, Rules or Regulations made prior to 01.07.2017 which allows such refund. In short, there is no provision under the "existing law" which allows such payment of refund in a situation as the present one. Therefore, the argument of the appellant that in addition to Rules 5, 5A and 5B of the Cenvat Credit Rules, 2004, 6 more mechanisms in transitional provisions of Section 142 of the CGST Act, 2017 exist for granting refund needs to be rejected as specious. It is clear that the appellant have misconstrued the provisions of Section 142(3) of the CGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmittedly the issue pertains to the Service Tax paid by the appellant during the present GST regime for the Service Tax which should have been paid by them under RCM basis during the previous Central Excise/Service Tax regime. The appellants have filed the refund claim seeking to get such amounts paid as cash refunds in terms of Section 142(3) of the CGST Act 2017. The issue as to whether in such cases whether this Tribunal has a Jurisdiction to decide the case or not was before the Hon'ble Larger Bench in the case of M/s Bosch Electrical Drive India Pvt Ltd. The Larger Bench vide their Interim Order No. 40021/2023 dated 21.12.2023 has held as under: 44. Under sub-section (3) of section 142 of the CGST Act, the claim for refund of any amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 173 shall not affect any proceedings including that relating to an appeal instituted before, on or after the appointed day under the said amended Act or repealed Acts and such proceedings shall be continued under the said amended Act or the repealed Acts as if the CGST Act had not come into force and the said Acts had not been amended or repealed. 46. There is, therefore, no manner of doubt that an appeal against an order passed under section 142 of the CGST Act would lie to the Tribunal. 47. This view also gains support from the fact the legislative intent could not have been to deprive either an assessee or the Revenue from the right of an appeal since an appeal against an order passed under section 142 of the CGST Act would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was not privy to the present view of the Larger Bench decision of M/s Bosch Electrical Drive India Pvt Ltd. Secondly, in that case factually the issue was different. The appellant had paid certain Service Tax and later on claimed that he had paid excess Service Tax which was being claimed by them as refund during the present GST regime. It has been noted by the Tribunal that the assessee should have used the facility provided towards revised Returns in terms of Rule 7B of the Service Tax Rules, which they failed to do. This also was instrumented in this decision arrived at by the Tribunal. On the other hand, the issue in the present case is squarely covered by the issues in the case law cited by the Learned Consultant. 10. The Learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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