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TMI Blog2024 (1) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... t have admittedly paid service tax in August, 2018 out of their own pocket. - the above case law is also squarely applicable to the facts of the present case. Admittedly, the Department was not aggrieved by the Order-in-Original passed and no further appeal was preferred by the Department before Commissioner (Appeals). Further, there are force with the appellant s arguments that the entire amount in question was paid almost after nine years from the date of imports. Therefore even on hypothetical basis there would be no possibility of the appellant passing on the customs duty burden on any other party. Therefore, the Revenue arguments on this issue is rejected. The impugned order is set aside - Adjudicating Authority is directed to grant the refund along with interest, which is to be calculated from the initial date of filing the refund claim - appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter V of the Finance Act and the Central Excise Act. If an application for refund of CENVAT credit had been filed at a point of timewhen the CGST Act had not been enacted, an appeal would lie before the Tribunal against an order passed on the application filed for refund of CENVAT credit. What has to be seen is whether an appeal can be filed before the Tribunal after the coming into force of the CGST Act against an order passed under sub-section (3) of section 142 of the CGST Act. In view of the specific provisions of sub-section (3) of section 142 of the CGST Act, every claim for refund after 01.07.2017 has to be disposed of in accordance with the provisions of the existing law i.e. Chapter V of the Finance Act and the Central Excise Act. This would mean that the appellate provisions would continue to remain the same. This position is also explicit from the provisions of sub-section (6)(b) of section 142 of the CGST Act, wherein it has been provided that every proceeding of appeal, review or reference relating to recovery of CENVAT credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e places reliance on the case law of Servo Packaging Ltd vs CGST & CE, Puducherry [2020 (373) ELT 550 (Tri-Chennai)] and the Final Order No. 40158-40171/2022 dated 06.05.2022 in the case of Aurobindo Pharma Ltd vs CC, Chennai-II. He reiterates the findings of the Lower Authorities. Accordingly, he submits that the present Appeal is required to be dismissed. 8. The Adjudicating Authority has rejected the refund claim on the following grounds: 18.4. I find that the amount has not become refundable to the assessees by virtue of the above said provision of Section 142(3) of CGST Act, 2017. Section 142(3) of CGST Act, 2017 is applicable only to cases where the claim for refund of Cenvat Credit could be made under existing law. There is no provision for refund of Cenvat Credit in existing law except and in accordance with the provisions of Rule 5 and 5B of Cenvat Credit Rules, 2004. The assessee's claim that they are eligible for Cenvat Credit of the CVD and SAD paid during Central Excise regime, had it been paid at that point of time and hence claiming now as refund do not appear to be proper. It appears that the provisions of Section 142(3) of CGST Act, 2017 are not applicable to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that Duty of Customs amounting to Rs.48,16,082/- has been paid, in which CVD+SAD of Rs.12,30,146/- are integral part. From the Order portion of OIO, it is seen that there is no dispute that the amount of Rs.12,30,146/- is on account of payment of CVD & SAD only. 13. In the case of Mithila Drugs Pvt Ltd vs CGST, Udaipur [2022 (3) TMI 58 - CESTAT New Delhi], the Delhi Bench has held as under: "7. Having considered the rival contentions, I find that the payment of CVD and SAD subsequently during GSTregime, for the imports made prior to 30.06.2017 is not disputed under the advance authorisation scheme. Itis also not disputed that the appellant have paid the CVD and SAD in August, 2018 by way of regularisationon being so pointed out by the Revenue Authority. Further, I find that the Court below have erred in observingin the impugned order, that without producing proper records of duty paid invoices etc. in manufacture of dutiable final product, refund cannot be given. I further find that refund of CVD and SAD in question is allowable, as credit is no longer available under the GST regime, which was however available under theerst while regime of Central Excise prior to 30.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on 22nd July, 2022 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 RespondentDepartment by the closing date of the window." [Emphasis supplied] 15. In the case of ITCO Industries Ltd vs CGST & CE, Salem [2022 (6) TMI 1040 - CESTAT Chennai], the Chennai Bench has held as under: 11. From the narration of facts, it can be seen that Department has rejected the claims invoking Rule 9(1)(b)ofCenvat Credit Rules, 2004. The said provision has already been reproduced above. The Department is ofthe view that credit is not eligible as appellant has paid the duties only after issuing a demand notice. Onperusal of the alleged demand notice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Section 142(3) and (6)of the CGST Act. 8. Accordingly, I direct the jurisdictional Assistant Commissioner to grant refunds to the appellant of theamount of SAD & CVD as reflected in the show causes notices and also in the orders-in-appeal. Suchrefund shall be granted within a period of 45 days from the date of receipt of order along with interest under Section 11BB of the Central Excise Act. The impugned orders are set aside." 12. Afterappreciating the facts and evidence as well as applying the principles of law laid in the abovedecisions, I am of the view that the rejection of refund claims cannot be justified. The impugned orders are setaside. Appeals are allowed with consequential relief, if any, as per law." [Emphasis supplied] 16. In the case of Flexi Caps & Polymers Pvt Ltd vs CGST & CE, Indore [2021 (9) TMI 917 - CESTAT New Delhi], the Delhi Bench has held as under: 7. Apparently, the said Cenvat Credit could not be availed any more due to the erstwhile law i.e. CentralExcise Act, 1944 being taken over by New GST Act, 2017. Perusal thereof shows that the Act contains a provision to take care of such unutilized credits of the assessee to be refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of non-fulfilment of Export Obligation, are eligible for cash refund when the Appellant cannot take these amounts as Cenvat Credit. The co-ordinate Benches of Tribunal have been consistently holding that the Appellant would be eligible for Cenvat Credit. The issue in the present appeal is squarely is covered by these decisions. 18. In the case of OSI Systems Pvt Ltd vs CCT, Rangareddy [2022 (9) TMI 801 - CESTAT Hyderabad], this Bench while dealing the issue as to whether the Service Tax paid on RCM basis subsequent to 01.07.2017, which otherwise is eligible as Cenvat Credit, can be taken as cash refund under Sec.142(3) of CGST Act, 2017 was considered and has held as under: "7. Having considered the rival contentions, I find that under transitional provision under section 142(3) of CGST Act, the limitation has been done away with and the only thing required for refund under the facts and circumstances is to see whether unjust enrichment is attracted. In the facts and circumstances, I hold that no unjust enrichment is attracted as the appellant have admittedly paid service tax in August, 2018 out of their own pocket. Accordingly, I allow this appeal and set aside the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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