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TMI Blog2024 (10) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... TECHNOLOGIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NASIK-I [ 2018 (2) TMI 804 - CESTAT, MUMBAI] a similar matter was examined by CESTAT Mumbai where it was held that 'It is apparent that the appellant is not service provider and therefore Rule 9(i)(bb) would not be applicable to them. The appellant is paying service tax on reverse chare basis in terms of Rule 2(1)(d) of Service Tax Rules, 1994 and therefore credit can be availed in terms of Rule 9(i)(e) of Cenvat Credit Rules. Since Rule 9(i)(bb) is not applicable to the appellant, the credit cannot be denied.' Transition of credit - HELD THAT:- The transition provisions contained under section 142 of CGST Act 2017 allows refund of any amount of CENVAT credit, duty, tax or int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AJIT KUMAR, MEMBER (TECHNICAL) Shri K. Manimaran, Chartered Accountant for the Appellant Smt. Anandalakshmi Ganeshram, Authorized Representative for the Respondent ORDER This appeal is filed by Madura Micro Finance Ltd. against Order in Appeal No. 22/2022 (CTA II) dated 12.5.2022 passed by the Commissioner of GST Central Excise (Appeals II), Chennai (impugned order). 2. Brief facts of the case are that the appellant is engaged in the business of Non-banking Financial Services. During the course of audit by the Audit II Commissionerate for the period from April 2012 to June 2017, the audit raised certain objections involving non/short payment of service tax by the appellant totaling to Rs.40,13,483/- which was paid by the appellant on 18.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible Input Tax Credit, which was again rejected on 21/02/2023 citing non-declaration of the amount in Service Tax returns. He stated that the service tax paid under RCM qualifies as eligible input tax credit and that non-declaration of the amount in Service Tax returns was because the Service tax returns had been filed on August 23, 2017, well before the Service Tax audit was conducted. To support the submission for eligibility for credit, the Appellant refers to the following decisions: i. CESTAT Delhi M/s. Asiatic Drugs and Pharmaceuticals Pvt. Ltd. Vs. Commissioner, CGST, Alwar dated 25.7.2022. ii. CESTAT Chennai M/s. Global Analytics India Pvt. Ltd. Vs. CGST CE, dated 22.7.2019. The Ld. C.A. further prayed that the impugned order be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collusion or wilful mis statement or suppression of facts or contravention of any of the provisions of the Finance Act or of the rules made thereunder with the intent to evade payment of service tax . . . . . . (e) a challan evidencing payment of service tax by the person liable to pay service tax under sub-clauses (iii), (iv), (v) and (vii) of clause (d) of sub-rule (1) or rule 2 of the Service Tax Rules, 1994. It is seen from the Rule that since tax is paid under RCM, the relevant provision is Rule 9(1)(e) ibid and not Rule 9(1)(bb), as evoked in the OIO and the impugned order and hence credit cannot be denied. In M/s Polygenta Technologies Ltd. Vs. Commissioner of Central Excise, Nasik-I (2018 (2) TMI 804-CESTAT, Mumbai) a similar matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as the tax was paid after being pointed out by Audit, by which time the CGST law had come into force on 01/07/2017. The issue hence gets covered under 142 of the CGST Act. The relevant portion of the miscellaneous provisions for transition of credit under GST Act under Section 142 reads as follows:- Section 142 of GST Act 2017: Miscellaneous Transitional Provisions (CHAPTER XX TRANSITIONAL PROVISIONS) (3) 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, notwithst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it clear that 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 refundable to the taxable person, the same shall be refunded to him in cash under the said law. I find that in the facts of the case the amount of tax after assessment paid under RCM was not hit by the taint of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of the Finance Act or of the rules made thereunder with the intent to evade payment of service tax, as no such notice was issued to the appellant alleging the same. Hence since the duty was paid after the GST Act c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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