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TMI Blog2024 (7) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... cals Ltd. Vs. Comm., CGST Bhopal [ 2019 (4) TMI 1896 - CESTAT NEW DELHI] , the Division Bench of the Tribunal held that Appellants were eligible for claimed refund. Refund allowed. Whether the claimed refund was barred by limitation? - HELD THAT:- Similar issue had come up for consideration before this Tribunal in the case of Jai Mateshwaari Steels (Pvt.) Ltd. Vs. Commissioner, CGST Dehradun [ 2022 (3) TMI 49 - CESTAT NEW DELHI] , it was held that limitation of 1 year provided under Section 11B is not applicable to the cases of refund under Section 142(3) of CGST Act, 2017 - the limitation prescribed under Section 11B is not applicable due to overriding effect of the CGST Act, 2017. The impugned order is set aside - Appeal allowed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) Shri Kapil Vaish , Chartered Accountant for the Appellant Shri Sandeep Pandey , Authorized Representative for the Respondent ORDER P. K. CHOUDHARY : The present appeal has been filed by the Appellant assailing the Order-in-Appeal No.262-CE/APPL/LKO/2023 dated 06.04.2023 passed by the Commissioner (Appeals) Customs, GST Central Excise, Lucknow. 2. Briefly stated, the facts of the case are that the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as their vested right; that in terms of Section 142(3) and Section 142(8) of CGST Act, 2017 read with Section 11B of Central Excise Act, 1944, the claim for refund was allowable; that the instruction dated 07-12-2015 was contrary to the decision of High Court and Tribunal; that time limit prescribed under Section 11B is not applicable to the said claim; that their case is covered by the series of decisions on the subject. He relied upon following decisions:- (a) NU Vista Ltd. Vs. CCE reported in 2022 (381) E.L.T. 681 (T). (b) Jai Mateshwaari Steels (Pvt.) Ltd. Final order No.50165/2022 dated 11-02-2022. (c) USV (Pvt.) Ltd reported in 2023 (5) Centax 7 (T). (d) Tata Telecommunications Transformation Services Ltd. Vs CCE reported in 2024 (80) G.S.T.L. 104 (T). (e) Final Order No.51849/2019 dated 26-04-2019 in case of Bharat Heavy Electricals Ltd. (f) Final Order No.A/12488/2021 dated 09-11-2021 in case of Atul Ltd. 5. Heard both sides and perused the appeal records. 6. I find that following issues arise in this appeal for my consideration :- A Whether Appellant is eligible for refund of Rs.47,98,760/-, which was the balance lying in its Cenvat Credit account under the head Education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that refund of credit of cess cannot be denied merely on the ground that such credit which could not be utilised prior to GST regime would stand lapsed. In this connection, Learned Counsel placed reliance upon the decision of the Tribunal in Slovak India Trading . The Tribunal, in the aforesaid decision rendered in Slovak India Trading held that refund has to be made when an assessee goes out of the Modvat Scheme or when the Company is closed . The appeal filed by the Department before the Karnataka High Court to assail the aforesaid decision of the Tribunal was dismissed and the relevant portion of the judgment is reproduced below :- 5. The Tribunal has noticed that various case laws in which similar claims were allowed. The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light of the assessee coming out of the Modvat Scheme. In these circumstances, we answer all the three questions as framed in para 17 against the Revenue and in favour of the assessee. The Supreme Court also dismissed the appeal filed by the Department to assail the aforesaid order of the Karnataka High Court and the order is repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the assessee and very much utilizable under the existing provisions. The appellants could not carry over the same under the GST regime. Thus the appellants were in a position where they could not utilize the same. We agree with learned Counsel of the appellant that the credits earned were a vested right in terms of the Hon ble Apex Court judgement in Eicher Motors case and will not extinguish with the change of law unless there was a specific provision which would debar such refund. It is also not rebutted by the revenue that the appellants had earned these credits and could not utilize the same due to substantial physical or deemed exports where no Central Excise duty was payable and under the existing provisions, had the appellants chosen to do so they could have availed refunds/ rebates under the existing provisions. There is no provision in the newly enacted law that such credits would lapse. Thus merely by change of legislation suddenly the appellants could not be put in a position to lose this valuable right. Thus we find that the ratio of Apex courts judgment is applicable as decided in cases where the assessee could not utilize the credit due to closure of factory or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tially carried forward the balance under the head KKC to the GST regime, however due to amendment in the GST Act, Appellants reversed the credit and claimed refund, which was held to be allowable by this Tribunal. 9. The next issue for consideration is whether the claimed refund is barred by limitation. The Commissioner (Appeals) has held that the credit was reversed in February, 2019 but the refund was filed on 24-03-2022. Thus the refund claim was filed after 1 year and is time barred. I find that this issue is also no more res integra. Similar issue had come up for consideration before this Tribunal in the case of Jai Mateshwaari Steels (Pvt.) Ltd. Vs. Commissioner, CGST Dehradun in Service Tax Appeal No. ST/50407/2021vide Final Order No.50165/2022 dated 11-02-2022, it was held that limitation of 1 year provided under Section 11B is not applicable to the cases of refund under Section 142(3) of CGST Act, 2017. The relevant portion of the order reads as under:- 4. So far the second objection is concerned as regards limitation, I find Section 142(3) (8) read as follows:- Section 142(3) Every claim for refund filed by any person before, on or after the appointed day, for refund of a ..... 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