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TMI Blog2025 (2) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... ecluded them from claiming a refund under the applicable legal framework.
Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is not applicable in the present case and distinguishable on facts. 4.3 He further submits that the learned Commissioner did not consider the judgments relied upon by the appellant which are applicable in the present facts and circumstances of the case. 4.4 He further submits that there exists no provision under the erstwhile law which prohibits the grant of refund of the unutilized credit amount to the manufacturer or service provider. He also submits that the genesis of the decisions on refund under Rule 5 of the Cenvat Credit Rules, 2004 has been that if an assessee closes down the business or unable to utilize the credit, then refund of Cenvat Credit should be allowed. 4.5 He further submits that in the present case, the appellant, due to GST coming into force, was unable to utilize the available credit and therefore, the appellant is duly entitled to refund under Rule 5 of the Cenvat Credit Rules, 2004. 4.6 He further submits that the Cenvat Credit in the present case has not been questioned and there is no possibility of utilizing the credit and the appellant is unable to carry forward the same for future or to transfer the same to others and therefore, it should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into force of GST from the appointed day i.e. from 01.07.2017, was required to transition the Cenvat Credit by filing the TRANS-1. The period of filing the TRANS-1 was further extended to 17.12.2017 vide CBIC's Order No. 9 of 2017 dated 15.11.2017, but despite that, the appellant did not transition the Cenvat Credit of unutilized balance of Cenvat Credit lying in their ST-3 returns. 5.4 In support of his submissions, the learned AR relies on the following decisions: M/s Rungta Mines Limited vs. Commissioner - 2022- TIOL-252-HC-JHARKHAND-GST M/s Cyient Limited vs. Commissioner, Rangareddy - 2024 (5) TMI 523 CESTAT HYDERABAD Systems Advisors Software Services Pvt Ltd vs. Commissioner, Bangalore East - 2023 (5) TMI 96 CESTAT BANGALORE 6. I have considered the rival submissions made by both the parties and perused the material on record as well as the various decisions relied upon by both the sides. I find that the main issue arising in the present case is whether the appellant is entitled to get the refund under Section 142(3) of the CGST Act, 2017 read with Rule 5 of the Cenvat Credit Rules, 2004 and Section 11B of the Central Excise Act, 1944 by virtue of Section 83 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refunded in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of Section 11B of the Central Excise Act, 1944. (e) It also provides that where any claim for refund of Cenvat credit is fully or even partially rejected, the amount so rejected shall lapse. (f) The second proviso provides 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 the CGST Act. 41. Thus, Section 142(3) of CGST Act clearly provides that refund application with respect of any amount relating to Cenvat credit, duty, tax, interest or any other amount paid under the existing law is to be disposed of in accordance with the provisions of existing law and if any such amount accrues the same shall be paid in cash. Such right to refund in cash has been conferred notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of Section 11B of the Central Excise Act, 1944. 42. It is not in dispute that the refunds under the existing law of Service Tax as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons for refunds were pending or time limit for claiming refund was yet to expire or may crystalize on account of any judgment of Courts or Tribunals in relation to pending litigations. These are some of the situations which would be covered by the miscellaneous transitional provisions as contained in Section 142(3) of CGST Act which would continue to be governed by Section 11B(2) of Central Excise Act, 1944. 45. The provision of Section 142(3) does not entitle a person to seek refund who has no such right under the existing law or where the right under the existing law has extinguished or where right under the new CGST regime with respect to such claim has not been exercised in terms of the provision of CGST Act and the rules framed and notifications issued. Meaning thereby, Section 142(3) does not confer a new right which never existed under the old regime except to the manner of giving relief by refund in cash if the person is found entitled under the existing law in terms of the existing law. Section 142(3) does not create any new right on any person but it saves the existing right which existed on the appointed day and provides the modalities for refund in cash if found entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner on the one hand illegally took credit of service tax on "port services" as credit in their ST-3 return and on the other hand filed application for refund of the same amount under Section 142(3) of the CGST Act which is certainly not permissible in law. The authorities have rightly considered these aspects of the matter also while rejecting the application for refund filed by the petitioner. 50. It is not in dispute that the petitioner has claimed the credit of service tax involved in the present case paid on "port services" as "input service" in ST-3 return filed on 22-9-2017, though they were not entitled to claim such a credit. It is further not in dispute that the petitioner did not include the impugned service tax paid on "port services" in its ER-1 return and accordingly was neither entitled to include nor included the same as transitional credit in TRAN-1 under CGST Act. As per the notification (Annexure-5) extending the date of filing TRAN-1 to 31- 10-2017, the same was in relation to certain service tax issues which were paid after 30-6-2017 under reverse charge basis to cover instances of bills raised on 30-6- 2017 since credit is available only if the payment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port services in terms of the existing law read with Section 140 of CGST Act and had no existing right of refund on the date of coming into force of CGST Act. The petitioner having not used the port services for export was not entitled to claim refund under the existing law. The petitioner was also not entitled to refund on account of the fact that the petitioner had already taken credit of the service tax paid on port services in ST-3 Return of service tax although admittedly the petitioner was not entitled to take such credit in ST-3 Return. On account of aforesaid three distinct reasons the petitioner was rightly held to be not entitled to refund under Section 142(3) of CGST Act by the impugned orders. 53. All the aforesaid provisions referred to and relied upon by the Learned Counsel of the petitioner do not entitle a person like the petitioner to any relief in the circumstances of acts and omissions of the service provider (port authority) or the service recipient (the petitioner) who have failed to comply the provision of law, both under the existing law and also under the CGST Act. The relied upon provisions of CGST Act do not cover any such situation relating to any cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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