9911796707
TMI Blog2024 (5) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise duty - the levy of EC and SHEC was however dropped and deleted by the Finance Act, 2015. Whether the cess are cenvitable? - HELD THAT:- The definition of 'eligible duties and taxes' as per the explanation 3 under Section 140 of the CGST Act, 2017 was amended with retrospective effect from 01.07.2017 whereby it is specified that cesses are excluded from the definition of 'eligible duties and taxes', Thus, the credit is ab initio not available for utilization for GST. In view of the above, cesses are not be transitioned through TRAN-1, as per the transitional provisions specified under CGST Act, the credit balances not transitioned to GST regime shall lapse, and, as such, the argument of the appellant the impugned credits never lapse, as there is no provision retaining the same is not sustainable. The appellant cannot circumvent the said legal provision through the route of 142 (3) of the CGST Act. As the amount of Cenvat credit balance of E. Cess SHE Cess of Rs.7,97,27,333/- (of which refund had been filed by the appellant) was included in the carried forward amount by the appellant as on the appointed day i.e. 01.07.2017, in terms 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 ..... be allowed of any amount of Cenvat credit where the balance of the said amount as on the appointed day i.e. 30.06.2017 has been carried forward under this Act. In the instant case the entire amount of refund claim has been carried forward on the appointed day by the appellant as per the ER-1 filed and Tran-1 filed. Hence vide Show Cause Notice No. 18-36/2019-20 dated 03.12.2019 the entire refund claim of Rs. 7,97,27,333/- is proposed to be rejected in terms of provisions of Section 11B of Central Excise Act, 1944 read with 142(3) of the Central GST Act 2017. The said proposal has been confirmed vide Order-in-Original No. 04/2019-20 dated 12.02.2020. The appeal thereof has been rejected by Commissioner (Appeals) vide Order-in-Appeal No. 087-20-21 dated 18.03.2021. Being aggrieved the appellant is before this Tribunal. 2. We have heard Shri Vikash Agarwal, learned Advocate for the appellant and Shri Rakesh Agarwal, learned Authorized Representative for the respondent. 3. Learned counsel for the appellant has submitted that impugned order has been passed in violation of principles of natural justice are all intimations for personal hearing were belated being received after the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsalized quality basic education. Section 93 thereof reads as follows: 93. Education Cess on Excisable Goods (1) The Education Cess levied under Section 81, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Education Cess on excisable goods), at the rate of two per cent, calculated on the aggregate of all duties of excise (including special duty of 43 excise or any other duty of excise but excluding Education Cess on excisable goods) which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue) under the provisions of the Central Excise Act, 1944 (1 of 1944) or under any other law for the time being in force. (2) The Education Cess on excisable goods shall be in addition to any other duties of excise chargeable on such goods under the Central Excise Act, 1944 (1 of 1944) or any other law for the time being in force. (3) The provisions of the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 944 and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Secondary and Higher Education Cess on excisable goods as they apply in relation to the levy and collection of the duties of excise on such goods under the Central Excise Act, 1944 or the rules made thereunder, as the case may be. Thus, no doubt the Cess are the part of the excise duty. We observe that the levy of EC and SHEC was however dropped and deleted by the Finance Act, 2015. 5.3. The second question which arises is: Whether the cess are cenvitable. 5.4 The only provision permitting Cenvat credit of excise duty paid is Rule 3 of Cenvat Credit Rules: Rule 3 of the CENVAT Credit Rules, 2004 (CCR, 2004), provides that a manufacturer or a purchaser of final products or a provider of output service shall be allowed to take Cenvat credit of the duties specified in said Rule 3 of CCR, 2004. Sub-clause (vi) and (via) of the Rule 3(1) of CCR, 2004 reads as follows: (i) xxxxxx (ii) xxxxxx (iii) xxxxxx (iv) xxxxxx (v) xxxxxx (vi) the Education Cess on excisable goods leviable under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 The perusal of this provision makes it clear that any claim of refund even under CGST has to be dealt with in terms of the provisions of Central Excise Act, specifically Section 11B(2) thereof. The provision reads as follows: (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) rebate of duty of excise on excisable goods exported out of India or on excisable mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt) was included in the carried forward amount by the appellant as on the appointed day i.e. 01.07.2017, in terms of Section 142(3) of the CGST Act 2017, refund of the same is not admissible to the appellant. Thus, it is clear that taking of the input credit in respect of Education Cess and Secondary and Higher Educatiion Cess in the Electronic Ledger after 2015, after the levy of Cess itself ceased and stopped, does not even permit it to be called an input Cenvat credit and therefore, mere such accounting entry will not give any vested right to the Assessee to claim refund of the said amount. If one carefully compares all Sub-sections of Section 140, one can discern that while all other Sub-sections talk of entitled to take credit , Sub-section (8) uses the word allowed to take . The utilisation of such credit, even if taken in Electronic Ledger and notified in Form TRAN-1, does not guarantee any such right of utilisation independent of other parts of Section 140 specially ignoring Explanation 3. 6. In the light of entire above discussion, we hold that there is no error when Commissioner (Appeals) has held that there is no provision in the Cenvat Credit Rules, 2004 or in Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
