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TMI Blog2024 (10) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... d Cenvat credit under Rule 5. The Appellants would not be entitled for cash refund under Section 142(3) read with Section 174 of the Act. Therefore, there is no infirmity in the order passed by the Commissioner (Appeals). Appeal dismissed. - HON'BLE MR. A. K. JYOTISHI , MEMBER ( TECHNICAL ) Shri Ashwani Pahwa , CA for the Appellant Shri V. R. Pavan Kumar , AR for the Respondent ORDER [ Order per : A. K. JYOTISHI ] M/s Laurus Labs Ltd (hereinafter referred to as the Appellant) are engaged in providing Scientific Technical services and are registered under Service Tax as well as under GST. 2. During the Pre-GST regime, they had been taking, inter alia, credit and availing the same in respect of Krishi Kalyan Cess (hereinafter referred to as Cess) w.e.f. 01.06.2016. This was meant for discharging their liability of Cess on the output services. However, they being exporter of taxable services, the Appellant had been claiming refund of said Cess from time to time on account of export of services. After introduction of GST, in terms of ST3 return filed by them for the period April, 2017 to June, 2017, the Appellant had a closing balance of Rs.46,41,212/- pertaining to Cess as on 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows, in support that they are entitled for refund of Cess in cash in terms of provision of Section 142(3) read with Section 174 of the Act: a) Bank of Baroda Vs Asst. Commissioner [TS-362-CESTAT-2024-ST] b) M/s BHEL (Excise Taxation Division) Vs Commissioner, CGST, CE C, Bhopal [2019 (4) TMI 1896 (CESTAT-New Delhi)] c) BHEL Vs Commissioner, CGST CE, Kanpur [2022-VIL-322-CESTATALH- CE] d) Emami Cement Ltd, Nu Vista Ltd Vs Commissioner CGST, CE [2022 (3) TMI (1254) CESTAT New Delhi] 7. On the other hand, learned AR has vehemently opposed the arguments contending mainly that most of the judgments cited by the Appellants are no longer good precedents in view of various grounds and especially in view of the judgment of Larger Bench of Hon ble Bombay High Court in the case of Gauri Plasticulture Pvt Ltd (supra). He has also countered their argument about credit being substantive right that in view of settled law in terms of various judgments of Hon ble Supreme Court, Cenvat credit is not a substantive right and it is in the nature of concession and therefore, if there is no legislative intent to allow the credit or cash refund of credit or for restricted use of credit, it is well withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment of Section 140 or otherwise, in terms of Section 142(3) read with Section 174 of the Act. 10. The Appellants categorically asserted that they have not claimed the refund under Section 140 of the Act, which the Department has been alleging and therefore, it is not their contention that cess is an eligible duty and therefore, covered for transition. Their two main grounds are that; firstly, under Section 142(3) of the Act, they are entitled for cash refund of unused cess as they are not getting covered within the provision of Section 140 and secondly, that their claim under Section 142(3) would not be hit by limitation under Section 11B, in view of non-obstinate clause in the said provision. Whereas, the Original Authority as well as the Commissioner (Appeals) have examined the eligibility both under Section140 as well as under Section 142(3) read with Section 174 of the Act. In so far as Section 140 is concerned, it is a settled position that the cess, not being an eligible duty, would not be entitled for transition at all and would lapse. In so far as the provision under Section 142(3) is concerned, the Original Authority has taken a stand that refund in cash in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining the admissibility of refund of Cenvat credit on EC SHEC carried forward as on appointed date in terms of Section 142(3) of the Act, held that once the cess is not allowable, the question of refund for the same also does not arise by mere transition through TRAN-1. In this case, the question framed by the Tribunal was whether the cash refund of Cenvat credit of cess in the form of EC SHEC is permissible to be refunded as assessee was unable to utilize the said credit , and answer was in negative. In addition to reiterating the case laws relied upon by the Original Authority and the Commissioner (Appeals), Revenue has also relied on plethora of case laws, as follows, in support that in the facts of the case, the Appellants would not be entitled for cash refund under Section 142(3) of the Act. a) Rungta Mines Ltd Vs CCE, Jharkhand [2022 (2) TMI 934 Jharkhand High Court] b) CCE, C ST, Tirupati Vs Rani Plastic Pipe Industries [2020 (6) TMI 356 CESTAT Hyderabad] c) Banswara Syntex Ltd Vs CCE ST, Udaipur [2018 (10) TMI 1064 Rajasthan High Court] d) Phoenix Industries Pvt Ltd Vs CCE, Raigad [2014 (10) TMI 677 CESTAT Mumbai] e) Saera Electric Auto Pvt Ltd Vs CCE ST, Gurgaon-I [2020 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court was appealed to Hon ble Supreme Court, the Hon ble Supreme Court recorded the decision as in view of the concession made by the learned ASG, this Special Leave Petition is dismissed. Therefore, the said decision of Hon ble Karnataka High Court will not have a good precedent value including cases where the similar issues have been decided against the Appellant relying on Slovak India judgment. Moreover, in the Slovak India case, the issue pertained to the period before 01.04.2012, when the provision under CCR was amended to delete the work where for any reason such adjustment has not been possible . Similarly in the case of BHEL Vs Commissioner, Kanpur (supra), it is observed that the same order of Slovak India is relied upon. In this regard it is also observed that the Larger Bench of Hon ble High Court of Bombay in the case of Gauri Plasticulture Pvt Ltd (supra), also examined the decision of Hon ble Karnataka High Court in Slovak India case and, inter alia, held that the Order of Hon ble Supreme Court in the case of Slovak India Trading cannot be read as a declaration of law under Article 141 of the Constitution of India. It is also observed that the order in Emami Cem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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