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TMI Blog2024 (8) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... case as regards Section 142(3) of the Act. In the above judgement it was held that provisions of CGST Act do not cover any such situation relating to any consequences due to inter parte acts and omissions. It was also held that in that case as per the petitioner, the entire problem has cropped up due to non-receipt of invoice in original from port authorities although the port services were availed and payments for the same were made. In the present case also i.e. JSW Cement Pvt Ltd., the issue has cropped up because of late receipt of invoices bills in the last week of July 2017 in respect of input services received during the period March 2017 to June 2017 as admitted by the appellant. Therefore, as held in the Rungta Mines the late receipt of invoices is essentially between the appellant and its service provider and the tax collecting authorities had nothing to do in the matter. It was also held in Rungta Mines, that appellant never had a right to claim refund under the existing law. Thus, the Rungta Mines decision is exactly applicable to the instant case. There is no infirmity in the order passed by the Commissioner (Appeals), upholding the order of the Original Authority, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for refund of the same as CENVAT credit could not be availed by them, in terms of provisions of Section 142 (3) of the Act. He primarily relies on various case laws including Bosch Electrical Drive India Pvt. Ltd. Vs CCT, Chennai [2023 (12) TMI 1145-CESTAT, Chennai-LB] in support of their claim. He also heavily relied on the JSW Steel Ltd. decision in Final Order No. A/20452/2024 dated 31.05.2024 passed by Division Bench Hon ble CESTAT, Bangalore in the case of JSW Steels Ltd., Vs CCT, Belgaum, stating that similar issue is decided in their favour. The appellant also relied upon certain decisions as follows: (i) Assistant Commissioner of GST and Central Excise, Puducherry II Vs Ganges International Pvt Ltd. [2023 (68) G.S.T.L. 134 (Mad)]. (ii) The Hon ble CESTAT, Hyderabad in the case of OSI SYSTEMS PVT LTD., Vs CCT [2022-TIOL-872-CESTAT-HYD] (iii) The Hon ble CESTAT, Chennai in the case of TEREX India Pvt Ltd. Vs Commissioner of GST CE, Salem [2022(63) G.S.T.L. 238 (Tri. Chennai)] (iv) The Hon ble CESTAT New Delhi in the case of Indo Tooling Pvt Ltd., Vs Commissioner, CGST C.EX. Indore [2022 (61) G.S.T.L. 595 (Tri Del)] (v) The Hon ble CESTAT New Delhi in the case of M/s Nitin I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1994 (1 of 1944). 5. Learned DR main argument that the refund claim filed under sub-section 3 has to be disposed of in accordance with the provisions of existing law and the Section 142(3) does not independently provide any right to claim refund of any unutilized CENVAT credit without fulfillment of condition prescribed under the existing law. Learned DR has also relied on certain judgments in support of the claim that appellants were not entitled for refund in cash, as follows: (i) CAD VISION ENGINEERS PVT LTD. VERSUS COMMISSIONER OF CUSTOMS CENTRAL TAX (APPEALS-I), HYDERABAD [2024 (5) TMI 72 - CESTAT HYDERABAD] (ii) M/S CYIENT LIMITED VERSUS THE COMMISSIONER OF CENTRAL TAX, RANGAREDDY- GST [2024 (5) TMI 523 - CESTAT HYDERABAD] (iii) ARAGEN LIFE SCIENCES LTD VERSUS COMMISSIONER OF CENTRAL TAX SECUNDERABAD GST [2024 (5) TMI 65 - CESTAT HYDERABAD] (iv) M/S RUNGTA MINES LIMITED VERSUS THE COMMISSIONER OF CENTRAL GOODS SERVICE S TAX AND CENTRAL EXCISE, DIVISION I, JHARKHAND [2022 (2) TMI 934 - JHARKHAND HIGH COURT] (v) LATA HYDROCARBON RESOURCES PVT LTD VERSUS COMMISSIONER OF CENTRAL TAX, RANGAREDDY GST [2019 (12) TMI 1060 - CESTAT HYDERABAD] (vi) M/S MAHAVIR METAL MANUFACTURING ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] the Hon ble Division Bench of Rajasthan High Court held that refund of accumulated unutilized credit on account of education cess and secondary and higher education cess was not entitled for cash refund, in view of there being no provision under the Central Excise Act 1944 and the rules made there under. In the case of Rani Plastic Pipe Industries the Division Bench of CESTAT, Hyderabad held that Rule 5 of CCR 2004 is the only provision under which refund of CENVAT credit can be allowed and that there is no provision in the CENVAT credit rules for refund of CENVAT credit if the assessee is not able to utilize it for any other purpose, such as the factory being closed (Para 10). In the case of Karnataka High Court decision in Slovak India Trading Company Pvt Ltd which was affirmed by Hon ble Supreme Court, it was held that refund of accumulated credit can be allowed as refund on account of closer of factory but the departmental SLP against said Karnataka High Court decision was dismissed by the Hon ble Apex Court in view of the concessions. Further, in the case of Mahavir Metal Manufacturing Company [2023 (5) TMI 136 CESTAT, NEW DELHI] and Lata Hydrocarbon Resources Pvt Ltd., [201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and Service Tax Appellate Tribunal or otherwise? (Para 1). 36. The issue that has been referred to the Larger Bench of the Tribunal is whether a refund order passed under Section 142 of the CGST Act is appealable before the Tribunal. The reference made to the Larger Bench is answered as follows: 50. An appeal would lie to the Customs, Excise Service Tax Appellate Tribunal against an order passed under section 142 of the Central Goods and Services Tax Act, 2017. 13. From the above, it is quite discernible that the reference which was made to the Larger Bench is only as to whether refund order passed under Section 142 of CGST of 2017 is appealable before CESTAT or not. The CESTAT Larger Bench has answered that an appeal against such an order is maintainable before CESTAT. The remit of the Larger Bench is limited to the reference made to it. No other inference can be drawn from the Larger Bench decision except as to the maintainability of an appeal before CESTAT against an order passed under Section 142 of the CGST Act. Hence, the Larger Bench decision in Bosch is not of any help to the appellant herein. 14. The Learned Council placed reliance on CESTAT Bangalore Division Bench Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 11B (2) of Central Excise Act, 1944 . It is also important to note that section 11B(2) of Central Excise Act, 1944 deals with the manner in which applications for refund under section 11B (1) are to be dealt with as it uses the word such application which is clearly referrable to section 11B (1) of 28 Central Excise Act, 1944. Further, the proviso to section 11B(2) deals with situations of rebate of duty; unspent advance deposits; principles of unjust enrichment in cases where duty of excise is paid by manufacturer or borne by buyer and who have not passed on the incidence of such duty to any other person; and also where duty of excise is borne by any other class of applicant as the central government may notify in official gazette with a further proviso regarding unjust enrichment. 43. The entire section 11B of Central Excise Act, 1944, as it stood immediately before the appointed date, does not sanction any refund where the assessee has failed to claim CENVAT Credit as per CENVAT Credit Rules, 2004 and has lost its right to claim such credit by not claiming it within the time prescribed. Further section 11B also has its own strict time lines for claiming refund. Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Act that it indicates that section 142(3) would apply to the situations where the assessee has failed to take transitional credit under section 140(1), is also devoid of any merits. The second proviso only indicates that if the assessee has taken transitional credit he will not be entitled to refund. Certainly, an assessee cannot simultaneously claim transitional credit as well as refund of the same amount. The second proviso to section 143(2) cannot be said to be an eligibility condition to claim refund but is only a condition which governs refund as an assessee cannot be permitted to have transitional credit as well as refund of the same tax amount. 48. Section 140(5) applies under the circumstances where input services are received after the appointed day but the tax has been paid by the supplier under the existing law within the time and in the manner prescribed with a further condition that the invoice etc are recorded in the books of account of the such person within a period of 30 days from the appointed day. Section 140(5) also does not help the petitioner. Section 140 (5) has no applicability to the facts and circumstances of this case. In the instant case, admittedly th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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