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TMI Blog2024 (10) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... 140 of the CGST Act, 2017 was amended with retrospective effect from 01.07.2017 whereby it is specified that cesses are excluded from the definition of 'eligible duties and taxes', Thus, the credit is ab initio not available for utilization for GST. In view of the above, cesses are not be transitioned through TRAN-1, as per the transitional provisions specified under CGST Act, the credit balances not transitioned to GST regime shall lapse, and, as such, the argument of the appellant the impugned credits never lapse, as there is no provision retaining the same is not sustainable. Section 11B the only other provision for refunds in existing laws had been Rule 5 of CCR, 2004. To my understanding the interpretation of Rule 5 of CCR, 2004 is that where any inputs are used in the final products which are cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, the CENVAT credit in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garwal, Advocate for the Appellant Shri V.J. Saharan, Authorized Representative for the Respondent ORDER The present appeal is filed against the Order-in-Appeal No. 08 09/2021 dated 22.01.2021 vide which the refund of the amount lying in profit and loss account of the appellant has been allowed. However, the refund of the amount paid towards Education Cess Secondary Higher Education Cess (SHE Cess) has been rejected. Being aggrieved the appellant is before this Tribunal. The facts in brief are as follows: 1.1 M/s. Toyota Kirloskar Motor Pvt. Ltd. filed a claim of Rs.11,63,244/- on 07.03.2019 in respect of unspent amount of current account and Cenvat credit of Education Cess SHE Cess shown in the closing balance of ER-1 returns for the month of June 2017. During the scrutiny, it was observed by the department that there is no legal provision for refund of balance of Education Cess SHE Cess in Cenvat credit ledger. 1.2 A Show Cause Notice No. 75/19 dated 15.05.2019 was issued to the appellant proposing the rejection of the said refund claim. However, the original adjudicating authority vide Order-in-Original No. 02/2019 dated 06.06.2019 though rejected the claim of Rs.8,41,387/- out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. Vs. CCE, Raigad reported as 2014 (10) TMI 677 (CESTAT-Mumbai) (iv) Cellular Operators Association of India Vs. UOI reported as 2018 (2) TMI 1264 (Delhi High Court) 3.2 The appellant case is mentioned to be fully covered vide decision of this Tribunal in the case of Nu Vista Ltd Vs. Commissioner (A), CGST CE, Raipur reported as 2022 (381) ELT 681 (Tri.Del). With these submissions, learned counsel has prayed for the order under challenge to be set aside and appeal to be allowed holding appellant entitled for the refund of the amount of Rs.3,21,857/-, the amount of Cenvat credit with respect to Education Cess SHE Cess. 4. While rebutting these submissions, it is submitted on behalf of the department that Hon ble High Court of Rajasthan in the case of Banswara Syntex Ltd (supra) has directly considered the same issue as involved in the present appeal. The decision of this Tribunal in M/s. Tecumseh Products India Pvt. Ltd. (supra) also specifically covers the issue in question. The arguments of the appellant qua these cases are misleading. The adjudication authority have erred in sanctioning refund of Rs.3,21,857/- in respect of unspent amount of PLA applying the time limit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law for the time being in force. (2) The Education Cess on excisable goods shall be in addition to any other duties of excise chargeable on such goods under the Central Excise Act, 1944 (1 of 1944) or any other law for the time being in force. (3) The provisions of the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Education Cess on excisable goods as they apply in relation to the levy and collection of the duties of excise on such goods under the Central Excise Act, 1944 or the rules, as the case may be. (emphasis supplied) 5.2 The Central Government introduced the secondary and higher education cess at the rate of 1 per cent of the total excise duty under Sections 126 and 128 of the Finance Act, 2007, which are reproduced hereunder: 126. (1) Without prejudice to the provisions of subsection (12) of section 2, there shall be levied and collected, in accordance with the provisions of this Chapter as surcharge for purposes of the Union, a cess to be called the Secondary and Higher Education Cess, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be utilised only towards the payment of Education Cess leviable on the taxable services only and not against the normal excise duty. Thus CENVAT Rules, 2004 clearly restricted the utilisation of Education Cess and Higher and Secondary Education Cess on the output tax on goods and services and not against the normal excise duty or service tax liability. It is not disputed even before me that cross utilisation of CENVAT Credit in the form of Education Cess and Secondary and Higher Education Cess against normal service tax and excise duty liability was not allowed. 5.4 The controversial part in the present case is that the unutilized part of EC and SHEC lying to the credit of the appellant in his ledger continued even after the levies were omitted by the Finance Act, 2015 w.e.f. 01.03.2015 that too up to 13.06.2017 and thereafter the appellant had transferred the same through GST TRAN-1 to the GST regime w.e.f. 01.07.2017. Though on being pointed out by the department, the appellant reversed the same, however, claimed the refund thereof. It is observed that education cess and secondary and higher education cess are to be taken and utilized for the purpose of payment, respectively, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , be paid to the applicant, if such amount is relatable to- (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's current account maintained with the Principal Commissioner of Central Excise or Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and Interest, if any, paid on such duty to any other person; (e) the duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any paid on such duty to any other person; (f) the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further that no notification under clause (f) of the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in parts. The whole conveys only one sense i.e. refund of unutilized credit is only permissible in case of export of goods and not for any other reason. I draw my support from the decision of Hon ble Apex Court in the case of Union of India and Ors. Vs. Ind-Swift Laboratories Limited reported as 2011 (265) E.L.T. 3 (S.C.)wherein the Hon ble Apex Court summarized the legal position as follows: 20. A taxing statute must be interpreted in the light of what is clearly expressed. It is not permissible to import provisions in a taxing statute so as to supply any assumed deficiency. In support of the same we may refer to the decision of this Court in CST v. Modi Sugar Mills Ltd. wherein this Court at AIR para 11 has observed as follows: 11. In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed, it cannot import provisions in the statutes so as to supply any assumed deficiency. 5.8 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es a dead claim. Though the appellant had placed reliance upon the decision of Eicher Motors Ltd. Vs. Union of India 1999 (106) ELT 3 (S.C.) but the said decision has been distinguished by Hon ble Delhi High Court in Cellular Operators Association of India (supra) case by holding that with the levy of EC and SHEC being taken away in the year 2015 itself, it amounts to the facility for working out the earned credit to have been taken away and hence, the possibility of continuing the right is also held to have seized. Thus I hold that the balance of EC and SHEC credit available on inputs lying before 01.03.2015 cannot be utilized for payment of excise duty. Though Notification No. 12/2015 dated 30.04.2015 the Cenvat has taken on or after 01.03.2015 of EC @ 2% and SHEC @ 1% to be utilized for payment of duty of excise. But in the present case the Cenvat of Cess paid prior March, 2015 was never taken till the onset of CGST Act on 01.07.2017. 5.10 Coming to the transitional provisions of CGST Act, 2017 much emphasized by the appellant, I observe that transitional arrangement for input tax credit is given under Section 140 of CGST Act. This section comprises of 10 sub-sections and explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm TRAN-1 to be submitted as on 30th June 2017 and also the service tax in respect of services which are input services received before 30th June 2017 of which invoices may not have been received before that date and therefore, a relaxation of 30 days is provided for them. Therefore, the Court by any intendment or implication cannot include the aforesaid three types of Cesses, as are in question, in the terms of Eligible Duties and Taxes or Eligible Duties with reference to Explanation 1 and Explanation 2 to be carried forward and transitioned under Section 140 of the Act. 5.14 The Legislature took further care by inserting Explanation 3 which is couched in negative terms and for removal of any doubt, it further clarified that such eligible duties and taxes will exclude any Cess which has not been specified in Explanations 1 and 2. But, as noted above, the imposition or levy of Education Cess and Secondary and Higher Education Cess and Krishi Kalyan Cess did not operate after 01.07.2017. Explanation 3, in our opinion, specifying that any kind of Cess will be excluded for the purpose of Section 140, makes the intention of the Legislature very clear and Sub-section (8) of Section 140 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before us that credit of such Education Cess and Secondary and Higher Education Cess which could not be utilised against the Output Education Cess and Secondary and Higher Education Cess Liability, while the said impost was in force prior to Finance Act, 2015, became a dead claim in the year 2015 itself and therefore, there was no question of allowing a carry forward and set off after a gap of two years against the Output GST Liability with effect from 01.07.2017. 5.17 As far as the Section 142(3) of CGST Act is concerned as already appreciated above that the refund has to be dealt with in accordance of Section 11B as already explained above that refund of EC and SHEC, in the given circumstance, shall not be available under Section 11B of Central Excise Act, 2002 nor even under Rule 5 of CCR, 2004 (as already discussed above). No question of any kind of eligibility of the appellant to claim the refund of such credit which is nothing more than a dead claim, at all arises. I rely upon the decision of this Tribunal in the case of Commissioner of Central Excise Service Tax, Tirupati Vs. Rani Plastic Pipe Industries reported as 2020 (6) TMI 356 CESTAT, Hyderabad, wherein, while relyin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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