9911796707
TMI Blog2024 (7) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2018 by way of which, an assessee was prevented from transitioning credit pertaining to E. Cess and She Cess to its Electronic Credit Ledger, Appellant reversed the credit of Rs.47,98,760/- pertaining to Education Cess and SHE Cess. After reversal of the said credit, Appellant filed a refund claim for an amount of Rs.47,98,760/- alongwith interest pertaining to the Education Cess and SHE Cess credit lying in their Cenvat credit account on 30-06-2017.Vide order dated 16-08-2022, the Jurisdictional Deputy Commissioner rejected the claimed refund on the ground that Education Cess and SHE Cess did not qualify as 'eligible duties' as per the amended Section 140 of CGST Act, 2017. 3. On appeal the Commissioner (Appeals) vide order dated 06-04-2023 rejected the appeal after observing that :- (i) In the case of Commissioner of CGST, Bhopal Vs. M/s Bharat Heavy Electricals Ltd., Bhopal, the Tribunal, vide Final Order No.51849/2019 dated. 26-04-2019 had held that the Assessee is eligible for the cash refund of the cesses lying as Cenvat credit balance as on 30-06-2017 in their accounts. (ii) The order in the case of NU Vista Ltd. Vs. CCE reported in 2022 (381) E.L.T. 681 (T) is contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the amount and have intimated to the Department. At this juncture, it is pertinent to note that the amendment brought about to Explanation 1 & 2 of Section 140 of the CGST Act has not yet been notified. This was considered at length by the Hon'ble Bombay High Court in the case of Godrej & Boyce Manufacturing Co. Ltd. V. Union of India [(2023)3 Centax 231 (Bom.)] (ii) There is no dispute that on implementation of GST w.e.f 01-07-2017, Appellants were having credit balance of Rs.47,98,760/- under the head Education Cess and SHE Cess in their Cenvat credit account. Initially Appellant transitioned this credit to their electronic credit ledger by filing Form GST TRAN 1. However, consequent to the amendment to Section 140 of CGST Act, 2017, Appellants reversed the said credit and intimated to the Department on 25-03-2019. Thereafter they filed claim for refund of Rs.47,98,760/-. (iii) I find that the issue relating to refund of accumulated Cenvat credit of Education Cess and SHE Cess lying unutilized on 30-06-2017 has come up for consideration before this Tribunal in a series of cases. The issue is no more res integra. In the case of NU Vista Ltd. Vs. CCE reported in 2022 (381) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 (Tri. - Mumbai); and (4) CCE, Ahmedabad v. Arcoy Industries,2004 (170) E.L.T. 507 (Tri. - Mumbai). of the Tribunal in which it has been held that the assessee is entitled to refund of the amount deposited if the assessee has gone out of the Modvat Scheme or their unit is closed. Aggrieved against the order of the Tribunal, Revenue filed C.E.A. No.5/2006 in the High Court of Karnataka at Bangalore. The High Court by its impugned order has affirmed the order of the Tribunal and dismissed C.E.A. No. 5/2006 filed by the Revenue. Learned ASG appearing for the Union of India fairly concedes that those decisions of the Tribunal, which were relied upon by the Tribunal, have not been appealed against. In view of the concession made by the Learned ASG, this special leave petition is dismissed." "It is, therefore, clear from the aforesaid decision rendered in Slovak India Trading by the Tribunal, the Karnataka High Court and the Supreme Court that refund has to be granted when either there is a closure of the factory or when an assessee goes out of the Modvat scheme". "It needs to be noted that Cenvat credit avail is a vested right as has held by the Supreme Court in Eicher Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts/decisions cited supra, we hold that the assessee is eligible for the cash refund of the cessess lying as cenvat credit balance as on 30/06/2017 in their accounts. The decision of the 8 E/50081 of 2019 larger bench in the case of Steel Strips cited by the learned Departmental Representative could not be applicable in view of the contradictory decisions of High Courts on the same issue". "Accordingly we hold that impugned order-in-appeal is without any merit and thus we set aside the same. The appeal is accordingly allowed". (v) The aforesaid view regarding claim for refund of the balance under the head Education Cess and SHE has also been considered in following cases:- (a) Tata Telecommunications Transformation Services Ltd. Vs. CCE reported in 2024 (80) G.S.T.L. 104 (T). (b) Final Order No.A/12488/2021 dated 09-11-2021 in case of Atul Ltd. (c) USV (Pvt.) Ltd. reported in 2023 (5) Centax 7 (T). In all the above cases, it has been held that the balance in the account of Education Cess and SHE Cess were eligible for refund. In view of the above decisions, I hold that Appellants were eligible for claimed refund of the balances lying under the head Education Cess and SHE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944: Provided that where any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse: Provided further than 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. Section 142(8)(b) where in pursuance of an assessment or adjudication proceedings instituted, whether before, on or after the appointed day, under the existing law, any amount of tax, interest, fine or penalty becomes refundable to the taxable person, the same shall be refunded to him in cash under the said law, notwithstanding anything to the contrary contained in the said law other than the provision of subsection (2) of section 11B of the Central Excise Act, 1944 and the amount rejected, if any, shall not be admissible as input tax credit under this Act." "4. I find from a plain reading of the provisions quoted hereinabove, Section 142(3) of CGST Act, provides that after the appointed day (30th June 2017) every claim for refund of any duty, tax, interest, etc., under the existing law s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
