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TMI Blog2024 (12) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of input tax credit not for Cenvat credit. For the purpose of refund of Cenvat credit which pertains to the period prior 01.07.2017, the special provision was made for cash refund under Section 142 (3) of CGST Act. Therefore, the invocation of Section 142 (8) of CGST Act, 2017 is misplaced. Impact of Section 73(3) of Finance Act, 1994 on the refund claim - HELD THAT:- Section 73(3) is admission of the service tax liability and payment made therefore will not affect the admissibly of the Cenvat credit of such service tax. Had appellant claimed the refund of service tax paid by them the same can be barred under Section 73(3) which is not the case here. After payment of service tax, the appellant is eligible for Cenvat credit. Therefore, only because they opted for payment of service tax under section 73(3), admissibility of Cenvat credit cannot be questioned - The appellant have paid service tax admittedly and opted for section 73(3) of the Finance Act, 1994. This proposal has been accepted by the department and no show cause notice was issued that means the revenue has accepted the payment of service tax under Section 73(3) which provides that the service tax paid under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.07.2017 i.e. before the GST regime. Similarly, they have also paid service tax on reverse charge basis on the ocean freight for the period April-2017 to June 2017 for an amount of Rs. 13,97,310/-. These service tax were paid by the appellant suo-moto without any contest and they have proposed these payment under Section 73(3) of Chapter 5 of the Finance Act, 1994 whereby the issuance of show cause notice and penalty was waved. 1.1 Since, this amount of service tax was paid after 01.07.2017 but for the period prior to 01.07.2017, the same amount was eligible as Cenvat credit under the existing Law i.e. Cenvat Credit Rules, 2004 and the same was not eligible for taking input tax credit under GST. The appellants have filed refund claims in terms of Section 142 (3) of CGST Act, 2017. The department has issued two show cause notices both dated 06.09.2018, whereby the said refund claim was proposed to be rejected on the ground that the appellant in terms of Section 142 (8)(a) of CGST Act, 2017 not eligible for refund. Both the show cause notices were adjudicated vide Orders-In-Original No. REB/46/A.Schulman/Dn.V/2018-19 dated 29.10.2018 and No. REF/47/A.Schulman/Dn.V/2018-19 dated 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ism. It is a settled position that even if the service tax is paid after 01.07.2017 but the same pertains to the period prior 01.07.2017, the same is eligible for Cenvat credit for the period prior to 01.07.2017 and since the same cannot be utilised due to GST regime, the same is eligible for refund under Section 142 (3). 2.1 As regard the ground for rejection made by the Learned Commissioner (Appeals) under Rule 9(1)(bb) of Cenvat Credit Rules, 2004. He submits that firstly, no show cause notice was issued for demanding the service tax by invoking any suppression of fact, willful misstatement, fraud, collusion, etc. Therefore, the Rule 9(1)(bb) is not applicable. 2.2 He alternatively submits that in the present case the service tax was paid on reverse charge basis by the appellant being a service recipient and whereas the bar for availment of Cenvat credit as per Rule 9 (1) (bb) is applicable only in respect of the supplementary invoice, bill or challan issued by a provider of output service, which is not the case in the present appeal as the Cenvat credit was taken on the challan whereby the service tax was paid by the appellant being a recipient of service and not on the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of C.Ex., Visakhapatnam vs. Tirupathi Fuels Pvt. Ltd.-2017 (7) GSTL 142 (A.P.) 3. Shri R K Agrwal, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submission made by both the sides and perused the records. We find that the show cause notice proposed the rejection of the appellant s refund claim made under Section 142(3) invoking Section 142 (8) of CGST Act, 2017 which reads as under:- Section 142(8) in The Central Goods and Services Tax Act, 2017 (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 recovered under the existing law, be recovered as an arrear of tax under this Act and the amount so recovered shall not be admissible as input tax credit under this Act; (b) 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the learned commissioner (Appeals) also decided the issue which was not arising either from show cause Notice or from the order-in-original. Therefore, the learned commissioner (Appeals) also decided Refund under Section 142(3) on the ground which is not arising from the order. Hence, the order-in-appeal also travelled beyond the scope of either show cause notice or the order-in-original. 4.5 Without prejudice to the above we find that the appellant have paid service tax admittedly and opted for section 73(3) of the Finance Act, 1994. This proposal has been accepted by the department and no show cause notice was issued that means the revenue has accepted the payment of service tax under Section 73(3) which provides that the service tax paid under Section 73(3) is without having any ingredient of suppression of facts, willful misstatement , collusion , fraud, etc. Had there been an allegation of department on the above ingredients, the proposal of the appellant could not have been excepted as the same is barred in the term of Section 73(4) of Finance Act, 1994 which has not been invoked by the department. Therefore, it is an established fact in the present case that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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