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TMI Blog2024 (6) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... der the provisions of Section 142 of CGST Act, 2017 is required to be dealt by this Tribunal. In the present case, as the CVD was paid subsequent to the appointed date (01.07.2017) for introduction of GST, i.e., on 18.07.2017, the appellant was unable to take credit of the same as Cenvat credit. Learned Commissioner (Appeals) had accordingly gave a finding that the appellant is eligible to avail credit of CVD paid on inputs under the Cenvat Credit Rules, 2004; however, he did not agree to the contention of the appellant stating that the provisions of Section 140(5) of CGST Act, 2017 provide for allowing credit of eligible duties. Further, learned Commissioner (Appeals) had held that the provisions of Section 142(3) ibid is not applicable to the present case and hence no refund can be claimed by the appellant under this provision. Thus, there are strong grounds to consider refund of CVD paid on re-imported Metformin HCL BP under B/E No. 9247561 dated 10.04.2017 and under Challan dated 18.07.2017 for an amount of Rs.1,50,147/- for which the appellant had filed the refund claim in the prescribed format under the provision of Section 142(3) CGST Act, 2017. Accordingly, the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax under Section 83 of the Finance Act, 1994, and Rules 5, 5A, 5B of Cenvat Credit Rules, 2004. Feeling aggrieved with the said the original order, the appellant filed an appeal before the Commissioner of GST and CX (Appeals-I) who had disposed of the case by upholding the Order-in-Original passed by original authority and by rejecting the appeal filed by the appellant. Being aggrieved with the impugned order, the appellant had filed this appeal before the Tribunal. 3.1 Learned Advocate has submitted that the appellant has rightly claimed refund of CVD paid after the appointed date i.e., 01.07.2017, under the provisions of Section 142(3) of the CGST Act, 2017. This issue was initially kept on hold on the ground that in similar matter a reference has been made to Larger bench of this Tribunal in the case of Bosch Electrical Drive India Pvt. Ltd. Vs. Commissioner of GST Central Excise, Chennai and therefore the matter was kept adjourned till the issue was decided. In this regard, he pointed out that this issue has attained finality as the Larger Bench of this Tribunal had decided the case on 21.12.2023 by holding that in respect of any order passed in respect of refund of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of Customs (CVD)paid on re-import of goods under the provisions of Section 142(3) of the CGST Act, 2017. 6.2. In this regard, I find that the larger bench has examined the issue regarding whether this Tribunal is the appropriate authority to decide the issue in appeal against the order passed in respect of the matter relating to refund under Section 142(3) of the CGST Act, 2017 and has held that an appeal against such order would lie with this Tribunal. Relevant paragraphs of the Interim Order No. 40021/2023 dated 21.12.2023 in the case of M/s Bosch Electrical Drive India Private Ltd., Vs. Commissioner of Central Tax, Chennai is extracted and given below: A Division Bench of the Tribunal has referred the following issue for determination by a Larger Bench of the Tribunal: Whether a refund order passed under Section 142 of the Central Goods and Services Tax Act, 2017 is appealable before the Customs, Excise and Service Tax Appellate Tribunal or otherwise? 2. It needs to be noted that earlier when the appeal had come up for hearing before a learned Member of the Tribunal, the learned Member referred the matter to the Division Bench for deciding: Whether the CESTAT, having been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny place of business on or after the appointed day, the registered person shall be eligible for refund of the duty paid under the existing law where such goods are returned by a person, other than a registered person, to the said place of business within a period of six months from the appointed day and such goods are identifiable to the satisfaction of the proper officer: Provided that if the said goods are returned by a registered person, the return of such goods shall be deemed to be a supply. (2) (a) Where, in pursuance of a contract entered into prior to the appointed day, the price of any goods or services or both is revised upwards on or after the appointed day, the registered person who had removed or provided such goods or services or both shall issue to the recipient a supplementary invoice or debit note, containing such particulars as may be prescribed, within thirty days of such price revision and for the purposes of this Act such supplementary invoice or debit note shall be deemed to have been issued in respect of an outward supply made under this Act; (b) where, in pursuance of a contract entered into prior to the appointed day, the price of any goods or services or b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944) . 6.4 Plain reading of the above legal provisions indicate that on account of the introduction of Goods and Services Tax (GST) by subsuming various indirect taxes and duties including Central Excise Duty, Service Tax under GST, inter alia, the transitional provisions have been prescribed under various situations. Sub-section (1) of Section 142 deal with a situation of refund duty paid under then existing law, in case of return of goods to any place of business on or after the appointed day; Sub-section (2) deals with revision of price upwards of any goods or services or both, on or after the appointed day, and consequential issue of supplementary invoice or debit note and similarly price revision downwards and consequential refund of duty; Sub-section (3) deals with refund claim filed on or after the appointed day in a situation where duty or tax have been paid under the existing law, and Sub-section (4) deals with refund of any duty or tax paid in respect of goods exported before or after the appointed date etc., 6.5 On careful perusal of the factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 142(3) ibid is not applicable to the present case and hence no refund can be claimed by the appellant under this provision. 6.6 On careful reading of the legal provision under Section 140(5) ibid, it is clear that this provision entitles a registered person to take credit of eligible duties and taxes paid by the supplier in respect of inputs or input services, received on or after the appointed day subject to certain conditions in respect of invoice, duty paying document to be recorded in the books of account. In the present case, the facts of the case are different that it relates to re-import transaction for which CVD was paid on 18.07.2017, subsequent to the appointed date and the said duty was paid by a separate challan issued by the customs authorities. The legal provision under Section 142(3) covers every claim for refund filed, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, and therefore the present case of refund is rightly covered under this provision. Since, the appellant is unable to take Cenvat credit on account of the CVD paid on 18.07.2017, the said am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re set aside. As a sequel, the matters are remitted back to the respondents for reconsideration. While reconsidering the same, the authority concerned, who has to deal with the applications of the petitioners, shall consider and dispose of these applications under section 142(3) of the CGST Act, 2017. (ii) While reconsidering the said applications, the claim made by the petitioners need not be considered for the purpose of refund of the claim made by them. However, the said claim made by the petitioners can very well be considered for the purpose of permitting the petitioners to carry forward the accrued credit to the electronic credit ledger of the GST regime. (iii) After considering the said applications, as indicated above, the necessary order shall be passed by the respondents within a period of six weeks from the date of receipt of a copy of this order. It is made clear that, before passing the orders as indicated above, an opportunity of being heard shall be given to the petitioners, so that the petitioners can put forth their case by providing all necessary inputs to the satisfaction of the authorities to take a decision thereon. 7. It is evident from the aforesaid order tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fecting the claim. This is not even statutory requirement and only flows from Notification No.27/2012 - CE(NT) dated 18.06.2012. In this Notification, the Central Board of Excise and Customs (Board) has suggested certain safeguards, conditions and limitations for the availment of refund of CENVAT credit and states at Clause 2(h) that any refund claim shall have a corresponding debit to the CENVAT credit account simultaneous with making the claim. 4. The Board evidently omitted to note that with the enactment of Central Goods and Services Tax Act, 2017, CENVAT credit account would be disabled. This is what has in fact transpired in not just the present case, but in the cases of several similarly placed assesses who have sought identical relief. xx xx xx xx xx 6. In the cases of other assessees they approached the Courts/authorities directly in BNP Paribas Global Securities Operations (P.) Ltd. v. Assistant Commissioner of GST Central Excise, Global Analytics India (P.) Ltd. v. Commissioner of G.S.T Central, Tamil Steel Engineering India (P.) Ltd. v. Commissioner of CGST Central Excise, Mysy Tech India Private Limited v. Commissioner of GST CE [Appeals-II] and Sundaram Business Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may mention at this juncture that the learned Standing Counsel also seeks to advance other arguments not advanced by the officer in the impugned order. It would be improper to improve the impugned order based on the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill v. Chief Election Commissioner [1978] 1 SCC 405, as per which an order would have to stand or fail on the strength of the reasoning question contained therein. Such other submissions are thus eschewed in limine. 16. In light of the discussion as aforesaid, I am of the considered view that the impugned order has no legs to stand and the same is set aside and this writ petition is allowed. The petitioner is entitled to and will receive the refund of the CENVAT credit in cash within a period of six weeks from date of receipt of a copy of this order. No costs. 8.2 Further, I also find that the case law cited by the learned AR in the case of Rungta Mines Ltd. (supra) is distinguishable on the very fact that the service tax in that case i.e., for port services were paid by the assessee in May, 2017 much before the appointed date of 01.07.2017 whereby he could have taken the same in Cenvat credit or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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