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TMI Blog2024 (9) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... ligibility of the refund under the existing law and held that there was no provision for refund of said duty in cash under the existing law in the event of failure of export obligation, for which admittedly he has discharged the said duty. The Hon ble High Court of Jharkhand in the Rungta Mines Ltd. case, [ 2022 (2) TMI 934 - JHARKHAND HIGH COURT ], has held that the claim for refund has to be examined within the provisions of the existing law i.e. in this case Central Excise Act and Rules made there under. There are only limited provisions for the cash refund in the existing law in respect of refund of credit taken by the assessee i.e. Rule 5, 5A and 5B of Cenvat Credit Rules 2004, and admittedly the case of the appellants are not falling within these rules, therefore, in the event they were not entitled for refund of credit in cash in respect of CVD and SAD under the existing law, then the provisions of Section 142 would not make them otherwise entitled for the said refund in cash. Further, in the facts of the case, it is to be clearly understood that they are not seeking refund of CVD and SAD paid due to non compliance of condition for grant of Advance Licence/Advance Authorisat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere unable to meet the export obligations, as required in terms of Advance Authorisation read with relevant notifications, they approached Policy Relaxation Committee (PRC) on 28.02.2019 for extension. However, the PRC after observing the grounds taken for relaxation being occurance of fire which happened in 2012, held that there was no merit or hardship in the argument made by the firm and hence rejected the request of the firm. Subsequent to this, the appellant paid total amount of Rs. 72,00,177/- which included CVD of Rs. 35,92,781/- and SAD of Rs. 13,45,122/- on 07.12.2020. They, thereafter, filed a refund claim of Rs. 49,40,903/- towards refund of CVD i.e. RS.35,92,781/- and SAD i.e. Rs. 13,45,122/- on 01.03.2021. Subsequently, after issuing the show cause notice, Order-in-Original dated 02.07.2021 was passed by Original Authority rejecting their refund claim. On appeal, Commissioner (Appeals) upheld the Order of Original Authority against which the appellants are before this Tribunal in present appeal (impugned order). 3. Learned Counsel for the appellant has mainly argued on the grounds that since they paid the duty only after introduction of GST and they were otherwise elig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h are as under: i. M/s Nelco Ltd., Vs UOI [2020 (36) GSTL 24 (Bom)] ii. M/s TVS Motor Company Ltd., Vs The State of Tamil Nadu Others [2018 (10) TMI 881-SC] iii. ALD Automative Pvt Ltd., Vs CTO [2018-TIOL-385-SC-VAT] Therefore, he counters the argument of the appellant that merely because they had paid the duty they become entitled for taking the credit because it is felt by them that it is their vested rights, is not correct. He also points out that in any case, they were aware by the end of 2015 itself that they were unable to fulfil the export obligation and therefore not entitled to notification benefit under which they had imported duty free, and that they could have paid the duty rather than waiting for various other options to get relaxation/extensions etc. In fact, there is a further great deal of delay in filing their application for relaxation before the PRC, which ultimately was also rejected as the ground for relief itself was found to be unsustainable. It was also pointed out that even after this rejection, they took another 16 months to pay the duty which they ought to have discharge immediately. In fact, it is observed that had they paid the duty prior to GST Regime, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are in fact seeking refund in cash of the credit of duty paid towards CVD and SAD, which would have occurred to them as credit under the existing law. The Original Authority and Appellate Authority have taken a stand that said credit, even if it occurs or becomes eligible in terms of existing law, the cash refund thereof was not possible under existing regime and hence they are also not eligible for cash refund in terms of provisions of Section 142 of the Act. 9. As regards denial of refund under Section 142(6) of the Act, Original Authority has held that it is not case of proceedings of appeal, review or reference for claiming CENVAT credit, as there is no order from any Appellate Body or Judicial Forum for granting any relief from payment of CVD or SAD. It is obvious that in facts of the case, it would not fall within the provisions of Section 142(6) as there was never a dispute or assessment relating to entitlement of credit, per se, before or after 01.07.2017. This provision covers a situation where there is any refund or admissibility of credit is in dispute and pending before any Judicial or Appellate Forum, who finally decides in favour of appellant post 2017 and as a conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as a consequence to their non-fulfilment of obligation at a much later date, they would not become entitled for taking the refund of the same amount in cash under the provisions of the Section 142(3) or 142(6). In Servo Packaging Ltd., case, having almost similar fact Tribunal took a view that refund was not admissible under Section 142(3) of the Act. Para 10 and 11 is reproduced below for ease of reference: 10. Thus, the availability of CENVAT paid on inputs despite failure to meet with the export obligation may not hold good here since, firstly, it was a conditional import and secondly, such import was to be exclusively used as per FTP. Moreover, such imported inputs cannot be used anywhere else but for export and hence, claiming input credit upon failure would defeat the very purpose/mandate of the Advance Licence. Hence, claim as to the benefit of CENVAT just as a normal import which is suffering duty is also unavailable for the very same reasons, also since the rules/procedures/conditions governing normal import compared to the one under Advance Authorization may vary because of the nature of import. 11. The import which would have normally suffered duty having escaped due t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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