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TMI Blog2024 (6) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... O. 729 OF 2021 "a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other Writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner's case and after going into the validity and legality thereof to quash and set aside the impugned Order dated 7.9.2018 (Exhibit-A) passed by Respondent No. 2 and the impugned Order-in-Appeal dated 16.7.2020 (Exhibit-B) passed by Respondent No. 3. b) that this Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other Writ, order or direction under Article 226 of the Constitution of India ordering and directing the Respondents themselves, their officers, subordinates, servants and agents to forthwith sanction, grant and pay to the Petitioner rebate of Rs. 10,48,11,737/- with appropriate interest thereon under Section 11BB of the Central Excise Act, 1944." WRIT PETITION NO. 1228 OF 2021 "a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other Writ, order or direction under Article 226 of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation under Section 35EE of the Central Excise Act, 1944 before respondent no. 2. Respondent no. 2, by an order dated 5th October 2018 held as under: "Government holds that any amount paid in excess of duty liability on one's own volition cannot be treated as duty and has to be treated as voluntary deposit with the Government, which is required to be returned in the manner in which it was paid as the said amount cannot be retained by the Government. Government therefore, holds that the excess duty paid by the Company over and above the FOB value be allowed as re-credit in the Cenvat credit account from which it was paid/debited subject to compliance of the provisions of Section 12B of Central Excise Act, 1944. Government however, directs that the re-credit of the excess duty paid is to be allowed by the original authority in all the above cases subject to compliance of the provisions of Section 12 B of Central Excise Act, 1944. and only after examining the aspect of unjust enrichment to satisfy himself that the duty incidence had not been passed on and realised by the Company from the overseas buyer." 6. The matter was referred to respondent no. 4, who by an order dated 22nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lakhs Eleven Thousand Seven Hundred and Thirty Four Only) to M/s Combiotic Global Caplet Pvt Ltd, under the provisions of Section 11B of Central Excise Act, 1944 read with Rule 18 of the Central Excise Rules, 2002 and in view of above Government Order." 7 Petitioner challenged these orders before respondent No. 3, who by order dated 16th July 2020 rejected petitioner's challenge. The relevant paragraph of the order dated 16th July 2020, which is also impugned in this petition, reads as under: "6.4 I find that the Company has contended that the adjudicating authority has erroneously and invalidly issued the impugned order for re-crediting the disputed amount in their Cenvat credit account under the existing laws without perusing the provisions of the Section 142 of the CGST Act, 2017. I find that they further contended that in terms of the Section 142 (3) of the CGST Act, 2017 read with Para 10 & 10.1 of Circular No. 37/11/2018-GST dated 15th March, 2018, the said amount should have been sanctioned in cash instead of re-crediting in their Cenvat credit account. I have perused the impugned revision order dated 05.10.2018 of the Hon'ble Revision Authority. I find that at Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices Tax Act 2017 (the Act) clearly says, w.e.f 1st July 2017, in view of the effect of change in the regime, i.e., when the GST regime was introduced, any refund that was payable to petitioner has to be paid in cash. Mr. Sridharan submitted that since the CENVAT regime has come to an end, credit of amount payable to petitioner to the CENVAT account would make no sense because petitioner will not get the money or credit thereof under the GST regime. Mr. Sridharan states since the government cannot retain any amount which is not due to it, the amount so collected is allowed to be paid over in cash as provided in sub-Section (3) of Section 142 of the Act. 9. Mr. Adik, and Ms Majmudar adopted the same submissions, submitted that the amount that was paid by petitioner was a voluntary deposit which was given on their own volition and not towards any duty and, therefore, the Adjudicating Authority has correctly come to the conclusion that such amount has to be returned to petitioner in the manner it was initially paid. 10. Section 142 (3) of the Act reads as under: "142:- Miscellaneous transitional provisions :- (1) ******************* (2)******************* (3) Every claim f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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