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TMI Blog2024 (6) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... ER, CENTRAL GOODS AND SERVICE TAX, UDAIPUR (RAJASTHAN) [ 2022 (3) TMI 58 - CESTAT NEW DELHI] , M/S. ITCO INDUSTRIES LTD. VERSUS COMMISSIONER OF GST CENTRAL EXCISE, SALEM [ 2022 (6) TMI 1040 - CESTAT CHENNAI] and FLEXI CAPS AND POLYMERS PVT LTD VERSUS COMMISSIONER, CGST CENTRAL EXCISE-INDORE [ 2021 (9) TMI 917 - CESTAT NEW DELHI] ], and by following these case-laws on this issue, has allowed the refund of CVD SAD. The appellant is entitled to refund of Cenvat Credit of CVD amounting to Rs.23,72,607/- and SAD amounting to Rs.10,21,081/-; and not the interest paid on delayed payment of duties as claimed by the appellant - Appeal allowed in part. - HON BLE Sh. S. S. GARG , MEMBER ( JUDICIAL ) And HON BLE Sh. P. ANJANI KUMAR , MEMBER ( TECHNICAL ) For the Appellant : Sh. D. K. Singh Sh. R. K. Varma , Advocates For the Respondent : Sh. Harish Kapoor , Authorized Representative ORDER PER : S. S. GARG The present appeal is directed against the impugned order dated 02.02.2022 passed by the Commissioner (Appeals) of Central Goods Service Tax, Gurugram, whereby the learned Commissioner (Appeals) has upheld the Order-in-Original dated 10.06.2021 and denied the benefit of Cenvat Credit in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he export obligation due to the situation beyond their control during the period of export obligation discharge. He refers to para 5.14 of handbook of procedure issued under Foreign Trade Policy 2009-14 and also Customs Notification No. 102/2009-Cus dated 11.09.2009 granting exemption of customs duty on import of capital goods under EPCG authorization. 4.3 He further submits that both the authorities have failed to appreciate that the appellant is claiming availment of Cenvat Credit of duty (CVD SAD) paid on capital goods in terms of Rule 3(1) of the Cenvat Credit Rules, 2004 which provides that a manufacturer or producer of final product shall be allowed to take Cenvat Credit of the additional duty leviable under Section 3 of the Customs Tariff Act, equivalent to the duty of excise and the additional duty leviable under sub-section (5) of Section 3 of the Customs Tariff Act, which is paid on any input or capital goods received in the factory of manufacture of final product or premises of the provider of output service on or after the 10th day of September, 2004. 4.4 He further submits that both the authorities have failed to appreciate that the appellant is claiming availment of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund filed under Section 142(3) of CGST Act, 2017. In this regard, the leaned Counsel submits that this decision of the Tribunal has been challenged by the appellant-assessee and the same is pending before the Hon ble Madras High Court and hence, it is not the final judgment in the matter. The Tribunal in M/s Servo Packaging Ltd s case (supra) has observed in para 11 as under : 11. . At best, the appellant could have availed the Cenvat Credit but that would not ipso facto give them any right to claim refund of such credit in cash with the onset of GST because Cenvat is an option available to an assessee to be exercised and the same cannot be enforced by the CESTAT at this stage. The learned Counsel submits that this observation of the Tribunal clearly shows that the appellant is eligible for the Cenvat Credit. 4.10 He also submits that though the Commissioner (Appeals) has relied upon the decision of Hon ble Bombay High Court in the case of M/s JCB India Ltd vs. UOI Writ Petition No. 3142 of 2017 decided on 19.02.2018, but the learned Commissioner (Appeals) has not quoted any specific provision which the appellant has not followed or complied with, which is required for availing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1944 (1 of 1944) and the amount rejected, if any, shall not be admissible as input tax credit under this Act; Provided 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. Rule 3. Cenvat Credit - (1) A manufacturer or producer of final products or a (provider of output service] shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of (i) . (ii) (iii) (iv) (v) . (vi) . (via) ............ (vii) the additional duty leviable under section 3 of the Customs Tariff Act, equivalent to the duty of excise specified under clauses (i), (ii), (iii), (iv), (v) , (vi) and (via): [* * * * * *] (viia) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act [* **]: Provided that a provider of [output] service shall not be eligible to take credit of such additional duty;] (viii) (ix) (ixa) (ixb) . (x) (xa).......... (xi)............ paid on (i) any input or capital goods received in the factory of manufacture of final product or [by] the provider of output service on or after the 10th day of September, 2004; and (ii) . Section 11B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the refund of Cenvat Credit of CVD SAD paid through various challans produced on record. 8. Further, we find that the Tribunal in the case of Sri Chakra Poly Plast India Pvt Ltd (supra) has considered the earlier judgments in the cases of Mithila Drugs Pvt Ltd (supra), Clariant Chemicals India Ltd (supra), ITCO Industries Ltd (supra) and Flexi Caps Polymers Pvt Ltd (supra), and by following these case-laws on this issue, has allowed the refund of CVD SAD. The relevant findings of the Tribunal in the case of Sri Chakra Poly Plast India Pvt Ltd (supra) from para 10 to para 14 are reproduced herein below: 10. 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 GST regime, for the imports made prior to 30.06.2017 is not disputed under the advance authorisation scheme. It is also not disputed that the appellant have paid the CVD and SAD in August, 2018 by way of regularisation on being so pointed out by the Revenue Authority. Further, I find that the Court below have erred in observing in the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed day has been carried forward under this Act; (Underlined to emphasise) 9. It is an admitted fact of the parties that the said CENVAT Credit balance was not carried forward to the Appellant s account on the appointed date since it was not due on the said day also. Therefore, in view of clear provision contain under 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 Respondent-Department by the closing date of the window. [Emphasis supplied] 12. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the erstwhile regime of Central Excise prior to 30.06.2017.Accordingly, I hold that the appellant is entitled to refund under the 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 the amount of SAD CVD as reflected in the show causes notices and also in the orders-in-appeal. Such refund 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. After appreciating the facts and evidence as well as applying the principles of law laid in the above decisions, I am of the view that the rejection of refund claims cannot be justified. The impugned orders are set aside. Appeals are allowed with consequential relief, if any, as per law. [Emphasis supplied] 13. In the case of Flexi Caps Polymers Pvt Ltd vs CGST CE, Indore [2021 (9) TMI 917 CESTAT New Delhi], the Delhi Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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