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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 ..... istered under the GST Act, 2017. The appellant filed ST-3 returns for the financial year ending March 2017 whereby there was an excess credit for Rs.11,01,642/- and quarterly return for the period April-June 2017 showing excess credit for Rs.2,38,080/-. For such excess amount of credit, the appellant applied for two separate refund claims on 09.07.2017 for Rs.11,01,642/- and on 15.09.2017 for Rs.2,38,080/- respectively. Thereafter, the appellant received a notice dated 16.03.2018 asking the appellant to reply as to why the claim of refund of balance Cenvat Credit should not be rejected as there exists no provision of refund of the balance Cenvat Credit in the Cenvat Credit Rules, 2004. The appellant filed its reply on 09.04.2018 relying upon various judgments of the High Courts and the Supreme Court whereby the refund applications were allowed in specified circumstances. Thereafter, the Original Authority rejected the refund claim vide its order dated 15.04.2018. Aggrieved by the said order, the appellant approached the Hon'ble Punjab & Haryana High Court vide CWP No. 15024 of 2018 and contested on the ground that during the pendency of refund application, upto March 2018, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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 allowed as refund in cash in terms of Section 142(3) of the CGST Act, 2017. He also prays for interest on delayed refund. 4.7 In support of his submissions, he relies on the following decisions: * Nu Vista Ltd vs. Commissioner, Raipur - 2022 (381) ELT 681 (Tri. Del.) * Tata Telecommunications Transformation Services Ltd vs. Commissioner, Mumbai Central - 2024 (80) GSTL 104 (Tri. Mumbai) * Shree Krishna Paper Mills & Industries Ltd vs. Commissioner - 2019 (365) ELT 594 (Tri. Chan.) * Commissioner vs. Shree Krishna Paper Mills & Industries Ltd & Ors - Order dated 11.12.2019 in CEA No. 36 of 2019 - High Court P&H * M/s Rama Industries Ltd vs. CCE, Chandigarh - Order dated 10.02.2009 in CEA No. 15 of 2009 - High Court P&H * Monochem Graphics Pvt Ltd vs. Commissioner, Delhi West - 2022 (67) GSTL 249 (Tri. Del.) * Sri Chakra Poly Plast India Pvt Ltd vs. Commissioner, Medchal - Final Order No. 30030/2024 in Excise Appeal No. 30372 of 2022 - CESTAT Hyderabad * Rakon Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant 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 Finance Act, 1994. 7. I find that the appellant filed the refund claim on the basis of Cenvat Credit as shown in their ST-3 returns for two quarters instead of transferring it to the new regime on coming into force of GST w.e.f. 01.07.2017. I do not find any reason why the appellant did not file TRANS-1 when there was sufficient time for them to file the same; instead of filing TRANS-1, the appellant chose to file the refund claim which was not permissible at that time as per the various provisions provided in Section 142 of the CGST Act regarding transitional credit. 8. Further, I find that the decisions relied upon by the appellant, as cited above, are on different aspects and are directly on the issue of refund of Cenvat Credit under Rule 5 of the Cenvat Credit Rules, 2004. Rule 5 ibid, in fact, does not apply to the appellant's case because the same is available when there is an export of goods or services; whereas, in this case, there is no export of goods or services. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 well as Central Excise Act, 1944 are governed by Section 11B of the Central Excise Act, 1944 and sub-section (2) of Section 11B also refers to application for refund made under Section 11B(1) of Central Excise Act, 1944. Further Section 11B(3) of Central Excise Act, 1944 clearly provides that all kinds of refunds including those arising out of judgment, decree or orders of court or tribunal are to be dealt with in accordance with the provisions of Section 11B(2) of Central Excise Act, 1944. It is also important to note that Section 11B(2) of Central Excise Act, 1944 deals with the manner in which applications for refund under Section 11B(1) are to be dealt with as it uses the words "such application" which is clearly referrable to Section 11B(1) of Central Excise Act, 1944. Further, the proviso to Section 11B(2) deals with situations of rebate of duty; unspent advance deposits; principles of unjust enrichment in cases where duty of excise is paid by manufacturer or borne by buyer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 entitled under the existing law as the entire claim is mandated to be dealt with as per the existing law. It neither revive any right which stood extinguished in terms of the existing law nor does it create a new right by virtue of coming into force of CGST Act. 46. Section 174 of the CGST Act read with Section 6 of the General Clauses Act saves the right acquired, accrued or vested under the existing law and does not create any new right which never existed on the appointed day i.e. on 1-7-2017 under the existing law. 47. The argument of the petitioner by referring to second proviso to Section 142(3) of CGST Act that it indicates that Section 142(3) would apply to the situations where the assessee has failed to take transitional credit under Section 140(1), is also devoid of any merits. The second proviso only indicates that if the assessee has taken transitional credit he will not be entitled to refund. Certainly, an assessee cannot simultaneously claim transitional credit as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is made and the payment in such cases could be made only after 30-6-2017. However, in the instant case the bill was admittedly generated on 23-5-2017, services availed and bill amount including service tax was paid in April, 2017 but the original bill did not reach the petitioner for unknown/undisclosed reasons. 51. It is apparent from the impugned orders that the specific case of the respondent is that the petitioner had claimed Cenvat credit under ST-3 return thereby treating the services involved in the present case as their input services used for providing output service, whereas they are not output service provider and the same cannot be used for providing output services. Therefore, it cannot be their input services under Rule 2(l) of Cenvat Credit Rules, 2004. I am also of the considered view that the petitioner could not have claimed the impugned service tax on port services in ST-3 return as they were registered for discharging their liability under the service tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner) 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 consequences due to inter parte acts and omissions. In the instant case, as per the case of the petitioner, the entire problem has cropped up due to non-receipt of the invoice in original from the port authorities although the port services were availed and payments for the same to the port authorities were made by the petitioner in the month of April, 2017, the invoice was generated by the port authorities in the month of May, 2017 but the original invoice was received by the petitioner only on 20-9-2017 i.e. after coming into force of CGST Act. The late receipt of the invoice is essentially between the petitioner and the port authorities and the tax collecting authorities had nothing to do in the matter. Certainly, the delay in receipt of original invoice is not attributable to the respondent authorities under the existing law or under the new law. 54. The authorities have held in the impugned orders that in the instance case, the timeline for claiming Cenvat credit qua the serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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