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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 ..... the specified tax limit as would have been otherwise required under Section 142(9)(b). Essentially when there is no provision in the law either under the Cenvat Credit Rules 2004 or in the Finance Act 1994 to allow cash refund, for such accumulated credit, Section 142(3), per se, cannot make it an eligible refund merely because the appellant have not been able to utilize on the ground of not having filed the revised return or were not able to take the TRAN-1 route etc., within specified time. It is observed that in the case of Banswara Syntex Vs CCE [ 2018 (10) TMI 1064 - RAJASTHAN HIGH COURT ], the Hon ble Division Bench of Rajastan High Court held that refund of accumulated unutilized credit on account of education cess and secondary and higher secondary education cess was not entitled for cash refund in view of their having no provision under the Act of 1944. There is no infirmity in the Order passed by the Commissioner (Appeals) upholding the Order of the Original Authority, who had rejected the claim of refund in cash filed by the appellant. Accordingly, the appeal filed by the appellant is liable to be dismissed. Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... and were otherwise entitled to take credit of the same, had they paid same amount before transition through TRAN-1 route, therefore, they are still entitled for refund of the same as credit which has substantially occurred to them, in terms of provisions under Section 142(3) of the Act. He further relies on various case laws including Collector of Central Excise, Pune Vs Dai Ichi Karkaria Ltd.,[1999 (08) LCX 0316 = 1999 (112) ELT 353 SC] in support that the credit is indefeasible and therefore they were substantively entitled to take the credit. They also made the plea that since they were not aware about dates for filing of TRAN-1, as the same being changed frequently, therefore they could not file otherwise they would have filed a revised TRAN-1 for carrying forward the credit of this service tax paid under reverse charge mechanism provision. He has also relied on certain case laws in support that denial of refund due to their failure to file revised TRAN-1 so as to carry forward is not correct and such vested right has to be allowed. Learned Advocate has also relied on the judgment of CESTAT Principal Bench in the case of M/s Bharat Heavy Electricals Ltd., Bhopal Vs Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944): Provided that where any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse: Provided further 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 this Act. His main argument is that the refund claim filed under Sub-section 3 has to be disposed off in accordance with the provisions of the existing law and the Section 142(3) does not independently provide any right to claim refund of any unutilized cenvat credit without fulfillment of conditions prescribed under the existing law. Learned DR has also relied on certain judgments in support of the facts that the appellants were not entitled for refund in cash. Some of the relevant cases relied upon are, as under: i. CCE, Tirupati Vs Rani Plastic Pipe Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant provisions, as it existed under the existing law, in this case Cenvat Credit Rules, 2004 or the Finance Act 1994. 10. The perusal of CCR under the existing law clearly brings out that the refund of unutilized cenvat credit can be made only for specific purpose under Rule 5, 5A and 5B, subject to certain prescribed/notified procedure, conditions and limitations etc., as may be specified or notified by notification. Also, it is obvious that there is no provision for refund of CENVAT credit either under CCR 2004 or Finance Act 1994 for service tax paid correctly, which in any case has not been disputed by the appellant. They have also admittedly not filed any revised ST-3 within the specified tax limit as would have been otherwise required under Section 142(9)(b). 11. Therefore, it is obvious that the nature of refund being sought in this case would not get covered in any one of these situations when there is no provision for refund of such cenvat credit or tax under existing law and I find much force in the argument of the Learned DR that Section 142(3) in itself is not a statutory provision for grant of refund, per se, as this is nothing but only an enabling Section fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund merely because the appellant have not been able to utilize on the ground of not having filed the revised return or were not able to take the TRAN-1 route etc., within specified time. I also observe that in the case of Banswara Syntex Vs CCE [2018 (91) TMI 1064], the Hon'ble Division Bench of Rajastan High Court held that refund of accumulated unutilized credit on account of education cess and secondary and higher secondary education cess was not entitled for cash refund in view of their having no provision under the Act of 1944. 14. Further, I also find that the issue of the scope of Section 142(3) of the Act came up before Hon'ble Jharkhand High Court in the case of M/s Rungta Mines Vs CCE, Jamshedpur [2022-TIOL-252-HC-Jharkhand-GST]. In this case Hon'ble High Court, interalia, held that the provision of Section 142(3) does not entitle a person to seek refund where no such rights occur under the existing law or new CGST regime in terms of provision of CGST Act and the rules framed and notification issued thereunder. Meaning thereby, Section 142(3) does not confer a new right which never existed under the old regime to the manner of giving relief if the person is not entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further condition that the invoice etc are recorded in the books of account of the such person within a period of 30 days from the appointed day. Section 140(5) also does not help the petitioner. Section 140 (5) has no applicability to the facts and circumstances of this case. In the instant case, admittedly the services in the nature of "port services" were received by the petitioner in the month of April 2017 and invoice was also generated in the month of May 2017. The ratio of the aforesaid judgment is squarely applicable to the facts of the case in so far as the interpretation of Section 142(3) of the Act is concerned. It must also be noted that a plain reading of provisions under the Act clearly supports this interpretation. There is no ambiguity in so far as wordings under Section 142(3) are concerned. 15. Therefore, having regard to rival submissions, citations and arguments, I find that there is no infirmity in the Order passed by the Commissioner (Appeals) upholding the Order of the Original Authority, who had rejected the claim of refund in cash filed by the appellant. Accordingly, the appeal filed by the appellant is liable to be dismissed. 16. Appeal dismissed. (Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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