9911796707
TMI Blog2025 (1) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 to June 2017 on 15.08.2017, wherein closing balance of Cenvat Credit was reflecting as Rs. 8,95,87,781/-. Pursuant to the filing of ST-3 return, the appellant, in accordance with Section 140 of CGST ACT read with Rule 117 of CGST Rules, carried forward the aforesaid closing balance of Cenvat Credit to GST Electronics Credit Ledger by filing form GST TRANS-1 on 15.08.2017 itself and claimed the same as 'transitional credit'. Subsequently, the appellant, on realizing that Cenvat credit on few of the invoices pertaining to services such as intellectual property right services, rent-a-cab operator service, goods transport agency service and manpower recruitment/supply agency service was not shown in the ST-3 return, filed revised ST-3 return on 06.09.2017 claiming such credit. As a result, the closing balance of Cenvat credit in its ST-3 return was Rs. 10,07,25,547/-. Resultantly, the closing balance of Cenvat credit in respect of input services was enhanced by Rs. 1,11,37,766/- The said additional Cenvat credit of Rs. 1,11,37,766/- on aforesaid services claimed in the revised ST-3 return, pertained to Service Tax paid by the Appellant under reverse charge mechanism. However, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch specific provisions that the Appellant filed refund claim of the said additional Cenvat credit. It has not been disputed in the impugned proceedings that the Appellant was eligible to claim refund in terms of Section 142 (9) (b) of the CGST Act. A.3. Reliance is placed on decision of Hon'ble Calcutta High Court in S Venkatesan v. Nihal Chand Agarwala, 2000 (126) ELT 274 (Cal), wherein it was held that specific provisions prevail over the general provisions, and that where a general intention is expressed and the Act expresses also a particular intention, incompatible with the general intention, the particular intention is to be considered in the nature of an exception. A.4. In the instant case, though provisions to revise Form GST Tran-1 have been provided under Rule 120A of the CGST Rules, Section 142 (9) (b) of the CGST Act specifically provides for cash refund of the additional claim of Cenvat credit. The provisions of the Rules cannot override the provisions of the Act, particularly when such provisions of the Act have been specifically enacted for application in the given facts. The facts of the present case are specifically covered under the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an-1 will lose its relevancy and every taxpayer will adopt this modus operandi and easy procedure to encash their Cenvat credit. B. 2 It is submitted that the Appellant has duly followed the procedure given in legal provisions under CGST Act and Finance Act, by carrying forward the closing balance of Cenvat credit arising out of original ST-3 return, to GST regime, vide Form GST Tran-1 in accordance with Section 140 (1) of CGST Act read with Rule 117 of CGST Rules. Further, the Appellant has correctly filed refund application of differential Cenvat credit arising out of revised ST-3 return, in accordance with Section 142 (9) (b) of CGST Act. Thus, the aforestated finding of the Appellate Authority is not sustainable and deserves to be set aside. B. 3. Further, it may be noted that when specific provisions have been enacted under Section 142 (9) (b) of CGST Act, it cannot be said that by claiming refund thereunder, the provisions of Section 140 (1) relating to carrying forward of credit through Form GST Tran-1 are rendered redundant. In fact, the Appellant carried forward the balance of Cenvat credit appearing in its original ST-3 return in terms of Section 140 (1). It was only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the ST-3 return. The Government, in its wisdom, has contemplated such a situation and rightly so, and provided for refund of such amount in cash. It was under such provisions of Section 142 (9) (b) of the CGST Act, that the Appellant claimed refund of Rs. 1,11,37,766/-, being the amount of additional Cenvat credit arising as a result of revision of the ST-3 return. C. 6 Further, Section 142 (9) (b) of the CGST Act is notwithstanding any provisions to the contrary under the existing law, except Section 11B(2), Section 11B(2) pertains to the test of unjust enrichment and fulfilment of requirements thereunder is undisputed in the impugned proceedings. In such a case, reference to only Section 11B of the Excise Act in the SCN is a clear attempt to defeat the legislative intention, particularly when the Appellant clearly based its refund claim under Section 142 (9) (b) of the CGST Act. C. 7 The Appellant submit that in such a case, thus, the allegation made in the SCN was legally incorrect, as enabling provisions for refund were enacted vide Section 142 (9) (b) of the CGST Act overriding the provisions of Section 11B of the Excise Act, except sub-section (2) thereof. When s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the submissions made by both the sides and perused the records. We find that there is no dispute that the refund claim sought by the appellant is in respect of the amount of Cenvat credit which was already accrued as on 30th June, 2017. The only mistake on the part of the appellant is that due to inadvertent mistake that they could not carry forward part of the amount of Cenvat credit and therefore, for the same they claimed the refund. We find that even if the appellant could not declare the Cenvat credit in the ST-3 return for the period April 2017 To June 2002 but, subsequently they have revised the ST-3 return wherein the differential amount of Cenvat credit was incorporated and due to this reason the Cenvat credit of Rs. 1,11,37,766/- could not be carried forward as form GST TRAN-1 was already filed prior to revision of the ST-3 return. Only for this reason refund claim of admitted Cenvat credit accrued prior to 30.06.2017 cannot be rejected. The appellant is eligible for refund in terms of section 142 (3) of CGST ACT, 2017 which reads as under:- 142. Miscellaneous transitional provisions (1) Where any goods on which duty, if any, had been paid under the existing law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944): PROVIDED that where any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse: PROVIDED FURTHER that no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act. (4) Every claim for refund filed after the appointed day for refund of any duty or lax paid under existing law in respect of the goods or services exported before or after the appointed day, shall be disposed of in accordance with the provisions of the existing law: PROVIDED that where any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse: PROVIDED FURTHER that no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act. From the plain reading of the above provision of Section 142 it can be seen that those amount of Cenvat credit which could not be transferred under GST after 01.07.2017, the same is refundable under the exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor able to transition such amount paid as Input Tax Credit under GST, the appellant filed this refund claim under Section 118 of the Central Excise Act, 1944 read with Section 142 (3) of the CGST Act, 2017. Applicability of Section 118(2) of the Central Excise Act. 1944 in conjunction with Section 142 (3) and Section 174 (2) of the CGST Act, 2017. CENVAT Credit is nothing but a right accrued under the repealed act and hence is protected as per Section 174 (2) of the CGST Act, 2017. Section 142 (3) of the CGST Act, 2017 provides that any claim for refund of CENVAT Credit or any tax paid under the existing law shall be processed as per the existing law and disposed of as cash refund notwithstanding anything contrary contained under the provisions of existing law except for Section 118 (2) of the Central Excise Act, 1944. Thus the very purpose of Section 142 (3) is to provide for refund of CENVAT Credit/tax paid under existing law in transitional scenarios covering such situations which are not provided-for in the existing law. He referred to the judgment of the Larger Bench of this Tribunal in M/s Bosch Electric Drive India Pvt. Ltd. Vs. Commissioner of Central Tax (Interim Order N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the 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)" Section 2(48) of CGST Act, 2017 states as under; "Existing law means, any law, notification, order, rule or regulations relating to levy and collection of duty or tax on goods or services or both passed or made before the commencement of this Act by parliament or any authority or person having the power to make such law, notification, order, rule or regulation." 5. Section 142 (3) of CGST Act, 2017 hence provides that claim for refund under the erstwhile CENVAT Credit Rules or Central Excise Act, 1944 etc. must be disposed in accordance with the existing law and the amount has to be paid in cash. Section 2(48) of CGST Act, 2017 states that the existing law means any law, notification, order, rule or regulation etc. which is made or passed before the commencement of CGST Act, 2017. 6. Further Section 174 (2) (c) of CGST Act, 2017, talks about rights and liabilities which have accrued or have been incurred under the erstwhile legislations. Thus, when t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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