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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 ..... ayment of KKC. The answer lies in Section 142(6) and was consciously dealt by the legislature to meet such contingency. The provision contained in Section 142(6)(a) 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 factual and legal position, there are no hesitation to hold that Appellant is entitled to get cash refund of KKC against which it had appropriately filed the refund application under Section 11B of the Central Excise Act. The order passed by the Commissioner of CGST Central Excise (Appeals-II), Mumbai hereby set aside - Appellant is entitled to get cash refund of Krishi Kalyan Cess of ₹28,30,992/- with applicable interest as per law and Respondent-Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not empower CESTAT to deal with amended provision introduced in 2018, for which this Tribunal should desist itself from hearing the appeal. This fact being noted in the written note of submission filed subsequent to the argument that took place on 19.07.2024, no argument could be heard from the side of Appellant on jurisdictional issue as not argued on that day. Written note of submission should never contain any fact or law on the issue that was never argued but since jurisdiction of Tribunal is questioned, it would be prudent on my part to answer the same. 4. To starts with, Section 140 of the GST Act contains transitional arrangement for input tax credit of CENVAT Credit of eligible duties by carrying it forward to GST Tran-I register for the purpose of payment of tax under Section 10 of the said Act w.e.f. 01.07.2017. Therefore, the entire process constitutes involvement of the existing law namely Central Excise Act and Rules etc. and the amended Finance Act, 1994 vis. a. vis. GST Act. As could be noticed, the original transitional provision under Section 140 of the CGST Act was confined to carrying forward of the amount of CENVAT Credit to Electronic Credit Ledger that was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount eventually accruing to him shall be paid in cash. The issue before this Tribunal is to scrutinise as to if only existing law would govern the refund or else the procedure available under existing law for ultimate redressal/disposal of the refund application would extend to the Appellate stage available in the existing law too. The decisions cited by the Learned Counsel for the appellant referred above clearly indicates that Tribunal setup under the existing law namely CESTAT had dealt and disposed of such dispute while the decisions cited by Learned Authorised Representative in Aditya Steel Rolling Mills Pvt. Ltd. (supra) states that GST Appellate Tribunal is to hear such appeal against decisions of the adjudicating authority namely the officers of the GST. The Circular No. 132/2/2020-GST, dated 18- 3-2020 by CBEC clarified that the Central Goods and Services Tax (Ninth Removal of Difficulties) Order 2019, dated 3-12-2019 provides that within 3 months of the President of GST Tribunal entering office, appeals can be filed when no such Tribunal is formed and in case of existence of such GST Tribunal it is to be filed within 3 months of communication of the order. Be that as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding including an appeal if filed after the appointed day under the Repealed Act also, the same shall be continued under the said Act as if GST Act has not come into force and the previous Act has not been amended or Repealed. 7. In view of operation of the saving Clause describe above, I am of the firm opinion that this appeal is maintainable before the CESTAT and this Bench is competent to decide the issue of refund of Cenvat credit as such an order has been passed in accordance with the existing law and not under the GST Act. 5. Now coming back to the transition of CESS, it is admitted by the parties that no specific reference to such transition was made when CGST Act was brought into force but one FAQ was issued by the Respondent-Department that CESS should not be transition but it was unsupported by any provision of law. To my considered view when Section 140 speaks about carrying forward of the amount of CENVAT Credit, it means credit that manufacturer or supplier paid towards duties and taxes paid for inputs or input services to be carried forward as a whole till the said wording is substituted by amendment so as to read it as the amount of CENVAT Credit of eligible dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght into practice in India since 1944 and there were 42 different types of Cesses being levied at different points of time and with introduction of GST, it is now reduced to 7 only by removal of many Cesses w.e.f. July, 2017. 7.1 The difference between tax and CESS is not that of its collection but its usage. CESS being collected with specific objective in mind, revenue generated from this tax must be utilised solely for the purpose for which it is collected and the purpose being clearly outlined, the Union Government is not required to share it like taxes with State Government and therefore, it can be excluded from the provision made in Article 270 of the Constitution of India. 7.2 The above narrative would go to show that collection of CESS is as good as collection of tax as its component but the purpose of use being different its utilisation or refund is to be determined in the way the legislature want it to be. In the instant case, as noted above, Krishi Kalyan Cess (KKC) was allowed to be taken as CENVAT Credit on inputs but was permitted only to be used towards payment taxes on output services or clearance of goods, also as KKC. This being the dictate of the law, framed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 140 of the CGST Act would no way affect such refund proceeding for the reason that it was not being notified for its implementation, as reveals from Notification No. 02/2019-CT dated 29.01.2019 and the findings of Hon'ble Bombay High Court in Godrej Boyce Mfg. Co. Ltd. case cited supra would also answer to the observation made by learned Commissioner (Appeals) that no relied upon case laws of the jurisdictional High Court was produced by the Appellant. It would be worthwhile to reproduce para 11 of the Hon'ble Bombay High Court order: 11. Importantly, Mr. Jetly has not produced any document or material to show that the amendments in Explanations 1 and 2 to Section 140 brought about by Section 28 of the Amending Act have been brought into force. Pertinently, amendment in sub-section (1) of Section 140 has been brought into force by the said notification and the expression 'of eligible duties' now finds place therein. However, Explanation 3 seeks to clarify that the expression 'eligible duties and taxes', as distinguished from 'eligible duties', excludes any Cess not specified in Explanations 1 and 2 and any Cess collected as additional duty of customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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