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TMI Blog2024 (5) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance with the provisions under Section 140 of CGST Act 2017 and Rules made thereunder. He further held that the claim of the appellant for entitlement of refund in cash under Section 142(3) of CGST Act 2017 (herein after referred to as Act) is also not tenable in view of the fact that there was no expressed provision for refund in cash when a rightful amount was paid as per law and further that the question of refund in cash arises only when the existing law provides for the same and that there is no provision in the existing law or CGST Act for grant of refund in this case. 2. The Commissioner (Appeals) in his impugned order has examined the entitlement of refund under Section 142(3) of the Act read with Section 11B of the Central Excise Act 1944. Commissioner (Appeals) is of the view that since all the claims of refund has to be disposed off in accordance with the provision of the existing law and since there is no provision for claiming refund of credit of service tax paid under reverse charge mechanism on input services under the provisions of Cenvat Credit Rules 2004 or Finance Act 2004, therefore, they were not entitled for said refund. He also distinguished the case law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no provision under the existing law to grant refund of credit in respect of service tax paid under reverse charge mechanism and the provisions under Section 142(3) is quite clear that unless the refund of any such input credit is otherwise eligible under the existing law, the same cannot be considered for refund in cash in terms of under Section 142(3). He also points out that there is a clear cut provision under the Act for claiming such credit by way of revised return or by carrying forward the said amount of cenvat credit lying in balance and relating to the period immediately preceding the appointed day. However, the same is subject to certain restrictions including specified eligible duties, taxes etc., in respect of which the credit can be carried forward. In this case, it is an admitted fact that the appellants had not carried forward any credit of such tax using the provisions under Section 140. 5. Learned DR also points out that specific miscellaneous transition provisions have been made under the Act itself and therefore as claimed by the appellant that they were otherwise entitled for refund under Section 142(3) of the said Act, has to be examined in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same amount, which was rejected by the proper Officer under the Act and this refund which they have sought in cash, is an alternative provision available to them under the Act. 9. At the very outset, it is to be understood that after the introduction of GST Laws with effect from 01.07.2017 certain transitional provisions were made so as to ensure that certain provisions of the existing law are further carried forward and claims, liability etc., under the existing laws were to be disposed off in terms of provisions made in the Act. In so far as it relates to refund of cenvat credit, there are apparently three options available post introduction of GST Laws. Firstly, under Section 140 where specific and eligible cenvat credits under existing law were entitled for being carried forward under the new regime and to be taken as credit in their electronic ledger under the Act, subject to provisions under the relevant rules and procedures. The second provision was in terms of Section 142(3) and third under Section 142(9)(b). A plain reading of the provisions would indicate that, interalia, refund of any amount of tax or cenvat credit has to be disposed off in accordance with the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the Hon'ble Tribunal has been stayed by Hon'ble High Court of Madhya Pradesh. The other citations relied upon are in relation to substantive right to claim input credit. However, I find that these judgments are in relation to the cenvat credit and it's admissibility under the erstwhile CCR and not in relation to the entitlement of refund under Section 142 of the Act. Moreover, as pointed out by the Learned DR, Division Bench of CESTAT, Hyderabad, in the case of CCE, Tirupati Vs Rani Plastic Pipe Industries [2020 (6) TMI 356-CESTAT,Hyd] has held that there is no provision in the CCR for refund of cenvat credit if the assessee is not able to utilize it for any other purpose, such as factory being closed and that it was also held that the Larger Bench of Hon'ble High Court of Bombay had held that no refund can be sanctioned under Section 11B if the assessee is unable to utilize cenvat credit on account of closure of manufacturing activities. Similar view was also held by the Division Bench of CESTAT in the case of Finex Industries Pvt Ltd., Vs CCE, which also examined, interalia, the judgments in the case of Union of India Vs Slovak India Trading Co. Pvt Ltd., [2006 (201) ELT 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund in cash if found entitled under the existing law as the entire claim is mandated to be dealt with as per the existing law. It neither revive any right which stood extinguished in terms of the existing law nor does it create a new right by virtue of coming into force of CGST, Act. 46. Section 174 of the CGST Act read with section 6 of the General Clauses Act saves the right acquired, accrued or vested under the existing law and does not create any new right which never existed on the appointed day i.e on 01.07.2017 under the existing law. 47. The argument of the petitioner by referring to second proviso to section 142(3) of CGST Act that it indicates that section 142(3) would apply to the situations where the assessee has failed to take transitional credit under section 140(1), is also devoid of any merits. The second proviso only indicates that if the assessee has taken transitional credit he will not be entitled to refund. Certainly, an assessee cannot simultaneously claim transitional credit as well as refund of the same amount. The second proviso to section 143(2) cannot be said to be an eligibility condition to claim refund but is only a condition which governs refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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