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TMI Blog2025 (1) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... ommencement of GST regime, by the Adjudicating Authority that received concurrence of the Commissioner of GST & Central Excise (Appeals), Thane, Mumbai vide his above referred order in disposing of four Orders-in-Original denying refund sought through four refund applications filed for the period between July, 2017 and March, 2018 for a total amount of Rs.24,75,319/- is assailed by the Assessee-Exporter before this forum. 2. Briefly stated, Appellant is primarily engaged in export of cut and polished diamonds after procuring rough diamonds and undertaking necessary manufacturing process. As a part of requirement by the importer/buyer, Appellant gets the final product certified by GIA Laboratory India Pvt. Ltd. and pays the charges with Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted in para 7 of the Order-in-Appeal. It reads: 7. Regarding the above issue, I find that the Adjudicating Authority has raised a valid question as the refund claims were filed after the roll out of GST on the Appointed day i.e. 01.07.2017, and by this date the Notification ibid was already repealed vide Section 173 of the Central Goods & Service Tax Act, 2017. In the light of this fact, the refund claims were not eligible for processing under the erstwhile provisions of Service Tax regime, as it must have been filed under the new rolled out provisions of CGST Act, 2017. As regards the plea of the Appellant that the provisions under the sub-section 4 of Section 142 of the CGST Act, 2017 are applicable in their case, I find that the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already there in public domain since Appointed day i.e. 01.07.2017 and being an assessee of the department, the Appellant should have ibide by them. 7.2 Hence, I conclude that there is no ambiguity regarding applicability of the CGST Act, 2017 in the instant cases. Hence, I find that the claims put forth by the Appellant are not filed under appropriate Act in force at the material time. Therefore, I find that the Adjudicating Authority has rightly rejected the refund claims." 4. During course of hearing of the appeal, learned Counsel for the Appellant has argued that the observation made above by the Commissioner (Appeals) is erroneous for the reason that he has taken Finance Act, 1994 that covers Service Tax matters as erstwhile Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that when CENVAT Credit was not admissible under the existing law or the Notification No. 41/2012-ST, refund could not be granted on the tax paid while availing input services at the time of export, to which learned Counsel for the Appellant countered in saying that in Rungta Mines Ltd. case since Rebate was allowed, refund under Rule, 5 could never be allowed and therefore, that was rejected, which has no bearing on the Appellant's appeals. 5.1. I have perused the case record, relevant provisions of law and the submissions made by the parties. It is a recognisable fact that Section 42 read with Section 174 of the CGST Act have made it crystal clear that Service Tax paid on inputs or input services before commencement of GST would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in accordance to Section 35A(4) of the Central Excise Act, 1944, equally applicable to Service Tax matters, in view of operation of Section 85(5) of the Finance Act, 1994 and as no other ground or reason is cited by the Commissioner (Appeals) for refusal of refund, which Appellant is entitled to get the refund as sought under the existing law. Hence the order. THE ORDER 6. All four appeals are allowed and the order passed by the Commissioner of GST & Central Excise (Appeals), Thane, Mumba vide Order-in-Appeal No. DL/45-48/APPEALS THANE/ME/2020-21 dated 28.08.2020 is hereby set aside with consequential relief of refund of Rs.24,75,319/- with applicable interest as per provision of law. Respondent-Department is directed to pay the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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