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TMI Blog2024 (7) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... f Lupin Ltd. [ 2023 (3) TMI 741 - CESTAT HYDERABAD ] has decided the issue of refund of KKC accumulated prior to 01.07.2017 holding that ' we reject the amount of refund for KKC RS 5.46,759/-, following the ruling of Larger Bench in the case of Gauri Plasticulture Pvt. Ltd [ 2019 (6) TMI 820 - BOMBAY HIGH COURT ] wherein it was held that a non-utilised portion of Cenvat credit cannot be claimed as refund in cash, distinguishing the ruling in Union of India v. Slovok India Trading Company [ 2006 (7) TMI 9 - KARNATAKA HIGH COURT ], as not a declaration of law under Article 141 of the Constitution.'. Since, the Division Bench of this Tribunal in case of refund of KKC has decided in favour of Revenue, therefore, by following the ratio of the said decisions, it is opined that the appellants are not entitled to the refund of the KKC - appeals dismissed. - MR. S. S. GARG, MEMBER (JUDICIAL) Present for the Appellant: Ms. Krati Singh and Shri Aman Singh, Advocates Present for the Respondent: Shri Narinder Singh and Shri Yashpal Singh, Authorized Representatives ORDER These two appeals (ST/60189/2023 ST/60190/2023) are directed against the impugned order dated 11.01.2023 and 17.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and hence filed a revised ST-3 return for the period April 2017 to June 2017 on 23.09.2017. The said revision led to enhancement of Cenvat credit of Service Tax as well as KKC credit. The differential increase of KKC in both the appeals was as under: Appeal No. KKC amount ST/60189/2023 10,49,283/- ST/60190/2023 5,53,903/- The appellant has given the list of events which led to the passing of the impugned order and is stated below: Particular Date Application filed by the Assessee-Appellants for refund of Service tax and KKC under Transitional Credit as per Section 142(9)(b) of the Central Goods and Services Tax Act, 2017 ( CGST Act ). 23.02.2018 Deficiency memo cum Show cause notice was issued seeking following clarifications from the Assessee-Appellant: Eligibility of carry forwarding of KKC in the Tran-1 as per Section 140 of CGST Act. Eligibility of refund of Cenvat credit in cash. Copy of Cenvat credit register for the period April-June 2017 along with payment details and copy of invoices. Declaration that no Cenvat credit has been availed/utilised in respect of the invoices which are availed in revised return along with auditors certificate. 31.07.2018 The Assessee-Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought by the Assessee-Appellants for such amount of Cenvat credit which has been accrued additionally as a result of the revision of Service Tax return (ST-3). She further submits that as per Rule 3 of the Cenvat Credit Rules, 2004 KKC finds mention in Rule 3(1a) of the Credit Rules, and therefore, it was entitled to carry forward the Cenvat credit which included KKC. She further relied upon the following decisions to buttress her argument that the appellant is entitle to file the cash refund of KKC after the advent of GST regime. In support of this, she relied upon the following decisions: Capgemini Solutions Pvt Ltd Versus Commissioner of Central Tax, Bangalore 2019 (11) TMI 384 - CESTAT Bangalore. Punjab National Bank Versus Commissioner of Central Tax, Bangalore North 2021 (7) TMI 326 - CESTAT Bangalore. Bharat Heavy Electricals Ltd. (Excise Taxation Division) Versus Commissioner Central Goods Service Tax, Central Excise Customs, Bhopal (Madhya Pradesh) 2019 (4) TMI 1896 - CESTAT NEW DELHI Kirloskar Toyota Textile Machinery Pvt. Ltd. vs Commissioner of Central Tax, Bengaluru South GST Commissionerate 2021 (8) TMI 818 - CESTAT BANGALORE Emami Cement Limited, Nu Vista Limited vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy Electricals Ltd. cited (Supra) has been stayed by the Hon ble Madhya Pradesh High Court reported in 2021 (3) TMI 1318 Madhya Pradesh High Court. She Further submits that grant of stay by the higher forum does not undermine the precedential value of the judgment and further the grant of stay by the High Court does not amount to any declaration of law and is only binding upon the parties to the said proceedings. For this regard, she relied upon the following decisions: Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association, 1992 (3) SCC 1 Niranjan Chatterjee vs. State of West Bengal, 2007 SCC Online Cal 283 Institute of Aeronautics Engineering Versus C.C.E., Bhopal - 2017 (12) TMI 1378 - CESTAT NEW DELHI 5.1 On the other hand, Ld. DR reiterates the findings of the impugned order and submits that as per the Larger Bench Order dated 03.06.2024 in the case of M/s G4S Secure Solutions (India) Pvt. Ltd, it is clear that the refund has to be processed in accordance with the existing law and the existing law in this case was Chapter V of the Finance Act. He further submits that as per the Larger Bench, refund of only that element of Cenvat is admissible to be refunded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Act, 1944 and the amount rejected, if any, shall not be admissible as input tax credit under this Act 7. Further, I find that this Tribunal in the case of Bharat Heavy Electricals Ltd (cited Supra) has held by relying the judgment in the case of Slovak India Trading Co. Pvt. Ltd. that assessee is eligible for cash refund of cesses lying as Cenvat credit balance as on 30.06.2017 in their accounts; but this judgment was appealed against by the department before the Hon ble Madhya Pradesh High Court and the Hon ble Madhya Pradesh High Court admitted the appeal on the following substantial question of law: Whether the unutilized CENVAT credit balances of Education Cess, Secondary Higher Education Cess and Krishi Kalyan Cess as on 1.7.2017 which were not allowed to be carried forward in Tran-1 under section 140 of CGST Act, 2017 were liable to be refunded to the respondent in cash under the provisions of section 142(3) of the Central Goods Services Tax, 2017 read with section 11B of the Central Excise Act, 1944 ? 8. Further, the Hon ble High Court in the meantime has directed that the refund granted by the Tribunal shall remain stayed till the final output of the appeal. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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