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TMI Blog2024 (8) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... sited on 30.06.2017 to Electronic Credit Ledger as FAQ was issued by the Respondent- Department guiding assessee not to transfer the same. Subsequently, Appellant sought for its refund in 2018 under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 for refund of Rs.28,30,992/- by submitting letter to the Refund Sanctioning Authority on 05.04.2018. Show-cause notice dated 22.10.2018 was issued to the Appellant proposing denial the refund and upon adjudication the said refund claim was rejected vide Order-in-Original dated 28.11.2018 that was unsuccessfully appealed before the Commissioner (Appeals) by the present Appellant. Legality of the said order passed by the Commissioner (Appeals) is questioned in this appeal. 3. During course of hearing of the appeal, learned Authorised Representative for the Respondent-Department Mr. S.B.P. Sinha questioned on jurisdiction of this Tribunal to deal with interpretation of Section 140 of CGST Act read with its amendment made on 29.08.2018 by way of introduction of Section 28 effecting amendment to various provisions. He is of the view that determination and scope of transfer of balance of KKC or any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 in M/s. Bosch Electrical Drive India Pvt. Ltd. case that appeal would lie before CESTAT against an order passed under Section 142 of the CGST Act, 2017. Furthermore, I had also decided the issue way back in 2022 in the case of Brose India Automotive Systems Pvt. Ltd. Vs. Commissioner of CGST & Central Excise, Pune-I, reported in 2022 (62) GSTL 40 (Tri.-Bom.). I would like to reproduce relevant portion of the said order that would provide answer to the point raised by the learned Authorised Representative with reply contained in the said judgement that Section 174 that deals with Repeal and Saving Clause, makes CGST Act nonest in the eyes of law for issues involving existing Excise or Service Tax matters concerning a any proceeding relating to appeal, review or reference that was instituted before on or after the appointed day (dated 01.07.2017) when it is concerned with the Repealed Act (Central Excise Act and Rules) or the Amended Finance Act, 1994. Para - 5 of the said order reads: "5. I have gone through the submissions, judicial decisions, relevant provisions of law guiding the issue and the case record. It is noteworthy to mention here that Section 142(3) clearly stipulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944) and the amount rejected, if any, shall not be admissible as Input Tax Credit under this Act : Provided that 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." (Underlined to Emphasis) Now the question comes, if such a provision can still remain valid after GST statute is brought into force through an official gazette notification. Answer is available under the saving Clause 2(f) of Section 174 that reads: "(2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (32 of 1994) (hereafter referred to as "such amendment" or "amended Act", as the case may be) to the extent mentioned in the sub-section (1) or section 173 shall not - (a) xx xx xx (b) xx xx xx (c) xx xx xx (d) xx xx xx (e) xx xx xx (f) affect any proceedings including that relating to an appeal, review or reference, instituted before on, or after the appointed day under the said amended Act or repealed Acts and suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferring to the judgment of the Hon'ble Bombay High Court passed in the case of Godrej & Boyce Mfg. Co. Ltd. Vs. Union of India and Ors. Reported in 2021 (11) TMI 157, has argued that those definition concerning eligible duties were never been brought into force by Gazette Notification till date and Explanation 3 being a clarification to Explanation 1 & 2 to Section 140 of CGST Amendment Act, cannot be read in isolation to those two Explanations, so as to exclude CESS from being transitioned. His further argument is that since transition to Electronic Credit Ledger namely Tran-I is no more permissible, they have filed a refund claim under Section 11B of the Central Excise Act as they are eligible for cash refund as per provision contained in Section 142(6)(a) of the CGST Act. 7. At this juncture, before getting into the issue on the eligibility of refund of CESS, it is imperative to go into the genesis of introduction of CESS in India to find out if CESS is a separate component or part and parcel of the tax or should be dealt separately. Going by the common understanding CESS is a form of tax and an additional levy by the Government to raise funds for specific purposes when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of existing law, and any amount of credit found to be admissible to the claimant shall be refunded to him in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944) and the amount rejected, if any, shall not be admissible as input tax credit under this Act : Provided that 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;" (Underlined to Emphasis) The above provision comes with a non-obstinate clause and it says that even if contrary provision is available in the existing law, then also notwithstanding availability of such provision, cash refund of CENVAT Credit lying in balance could be directed to be made in an appeal proceeding and the only exception to it is Section 11B sub- Section 2, which in the present case would not even dictate the Appellant to justify unjust enrichment, since Appellant can never go back to the existing law, upon introduction of CGST Act, to collect the same from any other person. This being the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application to sub-section (1) of Section 140. The respondent no. 3 while issuing the impugned show-cause notice perhaps overlooked this aspect and also that, parts of the amendments in Explanations 1 and 2 to Section 140 of the CGST Act sought to be introduced by sub-clause (1) each of clauses (b) and (c) of Section 28 of the Amending Act are yet to be brought into force. In such view of the matter, a reference to Explanations 1 and 2, as it stands now, may be held to be mindless which, in law, would amount to issuance of a notice without due regard to the provisions of law as well as facts requiring existence or non-existence of a material fact for assumption of jurisdiction." Having regard to the above observation and the discussions made as above and in carrying forward the judicial precedent set on the issue, the following order is passed. THE ORDER 9. The appeal is allowed and the order passed by the Commissioner of CGST & Central Excise (Appeals-II), Mumbai vide Order-in-Appeal No. SM/CO/293/Appeals-II/ME/2019 dated 28.11.2019 is hereby set aside. Appellant is entitled to get cash refund of Krishi Kalyan Cess of Rs.28,30,992/- with applicable interest as per law and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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