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TMI Blog2024 (3) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... ectly held that payments made were part of the recovery action under the enforcement done by DGCI and therefore duty, interest and penalty were paid for extended period. It is also found that adjudicating authority whose findings have been endorsed in the impugned order, has correctly held that the amount is paid as part of the recovery action. The input credit or refund of the same cannot be allowed. It is held that in recovery action and when penalties imposed and are discharged and duty paid under extended period, the credit to person who has evaded tax and then paid duty, interest and penalty cannot be allowed - appeal dismissed. - HON'BLE MR. SOMESH ARORA , MEMBER ( JUDICIAL ) For the Appellant : Shri Abhay Desai, Advocate For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 40021/2023 dated 21.12.2023 laid down various rulings regarding right of appeal in case of order passed under section 142 of the CGST Act for matters of CENVAT Credit etc. He also seeks to place reliance on various case law including in the matter of Circor Flow Technologies India Pvt Ltd Vs. Principal Commissioner Of GST Central Excise as reported in 2022 (59) G.S.T.L. 63 as also 2022 (63) G.S.T.L. 238 (Tri. Chennai) in Terex India Pvt. Ltd. Vs. Commissioner of GST C.E., Salem. 3. Ld. AR reiterates the finding of lower authorities specially emphasizing that the matter is a case of recovery and not voluntary payment of duty. 4. Considered, it is found that in the case of Circor Flow Technologies India Pvt Ltd (cited supra) as is appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod. The duty, interest, penalty was paid as part of enforcement action, it appears to save itself from higher penalty by the appellant. In this regard the para 2 and 3 and 3.1 of the impugned order is reproduced below : 2. Whereas it appears that the claimant has filed a refund application on 08.03.2019 for refund of Service Tax amounting to Rs.36,34,040/- (Rupees Thirty Six Lakh, Thirty Four Thousand and Forty Only) paid on Banking Financial Services received for expenses made in foreign currency for availment of External Commercial Borrowings (ECB) during the period from January 2013 to June 2017 under Reverse Charge Mechanism (RCM). The claimant has submitted the following documents alongwith their refund application : - (1) Copy of Inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April 2018, October 2018 and November 2018 vide various challans as under : Sr. No. Challan No. Date Amount (Rs.) 1 20018 dated 21.04.2018 Rs.34,83,260/- 2 50058 dated 09.10.2018 Rs.1,05,852/- 3 02926662911201820017 dated 29.11.2018 Rs.44,928/- TOTAL Rs.36,34,040/- From the reproduced portion, it is clear that party has not only paid duty of extended period in 3 installments i.e. in April 2018, October, 2018 and November 2018 but has also paid interest and penalty there upon seggregating the three. On this issue, it is found at Commissioner (Appeals) has correctly held that payments made were part of the recovery action under the enforcement done by DGCI and therefore duty, interest and penalty were paid for extended period. It is also foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the payments were result of an enquiry and it was not Suo-motu on the claimant's part, and therefore can be termed as 'recovery'. From the above governing provisions of Section 142 (8) (a), I find that service tax paid by the claimant is part of recovery proceedings and hence they are not eligible for the said refund as the claim amount was recovered as an arrears of service tax and the amount so recovered shall not be admissible as input tax credit under this Act. The decision thus correctly relies on Section 142 (8)(a) of the CGST Act, 2017 to deny credit, as payments were made and appropriated towards duty, interest and penalty in pursuance of determination and paid by the appellant. 5.1 In view of the forgoing, concurrent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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