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TMI Blog2024 (10) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... Invocation of Section 142(8) in the present case, for the purpose of denying refund is not warranted as none of the circumstances under Section 142(8) are attracted in the instant case. Section 142(8) invocation is warranted in a situation where amounts become recoverable from an assessee in pursuance of an assessment or adjudication proceedings initiated before, on or after the appointed date. The payment of service tax in the instant case is not pursuant to the circumstances set out in Section 142(8) but merely pursuant to audit undertaken of the accounts / records of the appellant. The rejection of the refund claim cannot be justified - the impugned order dated 21.09.2019 is set aside - appeal allowed. - HON BLE MR. VASA SESHAGIRI RAO , MEMBER ( TECHNICAL ) For the Appellant : Mr. Raghavan Ramabadran , Advocate For the Respondent : Ms. O. M. Reena , Authorised Representative ORDER Order : - M/s. Bosch Electrical Drive India Private Ltd. (the appellant herein) has filed a miscellaneous application for change of cause title to be as M/s. Bosch Automotive Electronics India Private Limited which is allowed. The Appellant pursuant to an audit conducted by the Department in Novembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal and accordingly this appeal is being taken up for disposal. The relevant portion of the order of the Larger Bench is reproduced for ready reference: - 8. The Deputy Commissioner, by order dated 24.04.2019, rejected the refund claim filed by the appellant for the reason that after the implementation of CGST Act on 01.07.2017, the CENVAT Rules ceased to be in force and the claim under section 142(3) of CGST Act cannot be considered to be under the existing law as the service tax was not paid in time but on 08.12.2017 after the CGST Act had come into force. 16. In the present case, the appellant had deposited the short payment of service tax under the reverse charge mechanism in respect of import of service on 08.12.2017, after the time period prescribed for filing the last ST-3 Return had expired. This amount was, therefore, not reflected in the ST-3 Return. The CGST Act came into force w.e.f. 01.07.2017. The appellant, therefore, could not claim the transition of the input credit under section 140 of the CGST Act. The appellant could not also avail CENVAT credit under the CENVAT Rules as they were no longer in force after the introduction of the CGST Act. 17. It is for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 541 - CESTAT New Delhi] (c) M/s. Krah Woory Indian Pvt Ltd vs. Commissioner of GST Central Excise, Chennai [2024 (2) TMI 368- CESTAT Chennai] (d) Lennox India Technology Centre Pvt. Ltd vs Commissioner of GST Central Excise [2024 (4) TMI 109 - CESTAT Chennai] (e) Granules India Limited vs. CCE Hyderabad [2024 (2) TMI 1375 - CESTAT Hyderabad] (f) Kobe Suspension Co Pvt Ltd vs. Commissioner of Central Excise, Goods Service Tax, Faridabad [2024 (6) TMI 180 - CESTAT Chandigarh] (g) Combitic Global Caplet Private Limited vs. Union of India [(2024) 20 Centax 144 (Bom.)] (h) Lav Kush Textiles v. CCE, Jaipur-II [2017 (353) E.L.T. 417 (Raj.)] (i) Nilkamal Limited v. The Commissioner [2021-VIL-273- CESTAT-CHE-ST] (j) Sl. Citation Ratio and relevant para a. Union of India vs. Slovak India Trading Co. Pvt. Ltd. [2008 (10) STR 101 (Kar.)] Assessee entitled to a refund while coming out of modvat scheme Paragraph 5. b. Union of India vs. Slovak India Trading Co. Pvt. Ltd. [2008 (223) E.L.T. A170 (S.C.)] Decision of the Hon ble High Court maintained in the Hon ble Supreme Court. c. DCM Fabrics vs. CCE, Jaipur[2009 (239) E.L.T. 139 (Tri. - Del.)] Cash refund is admissible when an assessee moves ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existing law, and if any amount becomes recoverable as a result of such appeal, review or reference, the same shall, unless recovered under the existing law, be recovered as an arrear of duty or tax under this Act and the amount so recovered shall not be admissible as input tax credit under this Act. (b) every proceeding of appeal, review or reference relating to any output duty or tax liability initiated whether before, on or after the appointed day under the existing law, shall be disposed of in accordance with the provisions of the existing law, and any amount 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 and the amount rejected, if any, shall not be admissible as input tax credit under this Act. iii. Section 142(8) (a) where in pursuance of an assessment or adjudication proceedings instituted, whether before, on or after the appointed day, under the existing law, any amount of tax, interest, fine or penalty becomes recoverable from the person, the same shall, unless reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 142(3) of CGST Act, 2017 of CENVAT credit which could not be claimed under erstwhile laws due to implementation of GST Acts is settled in favour of the Assessee which I find is squarely applicable to the facts of this appeal too. 10.1 In Assistant Commissioner (Review), CGST Central Excise Vs. M/s. Shakti pumps (I) Ltd. [2024 (7) TMI 541 - CESTAT New Delhi] it was held as follows: - 66. The inevitable conclusion, therefore, that follows from the aforesaid discussion is that Shakti Pumps is entitled to cash refund of CENVAT credit on the amount of CVD and SAD paid even after 01.07.2017. The Commissioner (Appeals), therefore, committed no illegality in granting this relief to Shakti Pumps. Further, a similar issue was analysed and decided in favour of the Assessee in M/s. Krah Woory Indian Pvt Ltd vs. Commissioner of GST Central Excise, Chennai [2024 (2) TMI 368-CESTAT] Chennai and in Lennox India Technology Centre Pvt. Ltd. vs. Commissioner of GST Central Excise [2024 (4) TMI 109 - CESTAT Chennai]. 10.2 In Fine Automotive and Industrial Radiators Pvt Ltd vs Commissioner [2019 (11) TMI 1408- CESTAT Chennai] it was held as follows: - 5. The Ld. Commissioner (Appeals) in the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it being a manufacturer of dutiable items, and as such the situation is revenue neutral. Further, the appellant under the erstwhile Cenvat Credit Rules was entitled to Cenvat credit of the said amount. Further, in view of the provisions of Section 142(3) of CGST Act, provides that every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of Cenvat credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid 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 (unjust enrichment). Further, Section 142(8)(a) provides that in pursuance of an assessment or adjudication proceedings instituted, whether before, on or after the appointed day, under the existing law, any amount of tax, interest, fine or penalty becomes recoverable from the person, the same shall, unless recovered under the existing law, be recovered as an arrear of tax under the CGST Act and the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der GST Act. It does not say that credit is not eligible under existing law (erstwhile law). This means in consequent to recovery of arrears in assessment/adjudication proceedings no input credit can be availed under GST Act, 2017. To be more clear, if there are any arrears to be recovered under the existing law, the same can be recovered by invoking the transitional provisions of the GST Act, however, input tax credit will not be admissible under the GST Act. The ingredients of Section 142(8)(a) is as under :- (a) Amount of tax is recoverable consequent to an assessment or adjudication proceedings; (b) Such amount has not been recovered under the existing law; (erstwhile law) (c) Such amount can be recovered as an arrear of tax under CGST Act, 2017; (d) On the amount so recovered, input tax credit will not be admissible under the CGST Act, 2017. 6.3 Further, as rightly argued by the Learned Counsel for the appellants, the above provision deals with recovery of arrears under the erstwhile law after implementation of CGST Act, 2017. In the present case, there is no assessment/adjudication tax as contemplated under the provisions of the erstwhile law. The appellant has paid the tax w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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