9911796707
TMI Blog2025 (1) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... ible to the appellant and such credit has to be processed under Section 142(3) of GST Act, 2017 and refunded in cash to the assessee. Therefore, the appellant is eligible to the said relief and the Department is accordingly directed to process the case of the appellant in accordance with the said decision. Similar view has been taken in the subsequent decision in the case of M/s. Nitin Industries vs. Commissioner of CGST ST, New Delhi [ 2022 (11) TMI 1090 - CESTAT NEW DELHI] that the appellant is entitled to refund in terms of Section 142(3) read with Section 54 read with Section 49(6) of the CGST Act. From the view taken by the various High Courts, it is settled that denial of credit of tax or duty paid under existing law would amount to v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund claim on the ground of being time barred and unjust enrichment. 2. The appellant is engaged in the manufacture of Insecticides, Rodenticides, Fungicides, Herbicides, Anti-Sprouting products and Plant Growth Regulators, Disinfectant. On the basis of reverse charge mechanism, they deposited the service tax amounting to Rs.2,67,659/- under the existing law of service tax and were entitled to avail the benefit of the Cenvat credit of the said amount under the Cenvat Credit Rules, 2004. Since the Credit Rules, 2004 were replaced by the Central Goods and Service Tax Act, 2017, the appellant could not take the Credit. The remaining balance of the credit along with the tax paid on services received in June 2017, but accounted for in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te for counting the period of one year is not the date of deposit of tax rather it is the date of the order-in-original on which the show cause notice has been passed and in that view, there is no delay in filing the refund claim. The learned Counsel referred to the decisions as follows:- (1) Circor Flow Technologies India Pvt. Ltd. Vs. Pr. Commissioner of CGST Central Excise, Coimbatore 2022 (59) GSTL 63 (Tri-Chennai) (2) Nitin Industries Vs. Com. CGST ST, New Delhi 2023 (9) Centax 49 (Tri-Del.) 6. On the issue of unjust enrichment, the learned Counsel submitted that the service tax deposited under the reverse charge mechanism cannot be passed on to anybody else, as no invoice is raised for the same, and therefore, the theory of unjust enr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduction of GST. Conversely, the right accrued under the said Act in the nature of credit available under CCR, 2004 also is protected. In line there with, it was held that if the assessee has to pay service tax, even after the introduction of GST, their right to avail the credit on the same cannot be denied. Further, it was observed that Section 142(3) of GST Act provides how to deal with claims of refund of service tax and duty/credit under the erstwhile law. It was accordingly directed, that though credit is not available as input tax credit under GST law, the credit under the old Credit Rules is eligible to the appellant and such credit has to be processed under Section 142(3) of GST Act, 2017 and refunded in cash to the assessee. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost-GST regime and, therefore, it is violative of Article 14 of the Constitution. 34. Section 16 of the CGST Act allows the entitlement to take input tax credit in respect of the post-GST purchase of goods or services within return to be filed under Section 39 for the month of September following the end of financial year to such purchase or furnishing of the relevant annual return, whichever is earlier. Whereas, Rule 117 allows time-limit only up to 27th December, 2017 to claim transitional credit on pre-GST purchases. Therefore, it is arbitrary and unreasonable to discriminate in terms of the time-limit to allow the availment of the input tax credit with respect to the purchase of goods and services made in pre-GST regime and post-GST reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim filed by the appellant has been rejected on the ground of limitation as prescribed under Section 11B of the Excise Act, which is unsustainable in view of the discussion above. The appellant had rightly availed the Input Tax Credit in the Tran-I Form, however, the benefit thereof was wrongly denied. The issuance of the show cause notice on 12.08.2021 led the appellant to prefer the refund claim on 23.09.2021. The provisions of Repeal Savings in Section 174 (2) of GST Act protected the right of credit even though the provisions of Central Excise Service Tax were repealed. Reference is further invited to the provisions of Section 142 (3) of the GST Act, which reads a under:- Provisions of Section 142(3)-- Every claim for refund f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
