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TMI Blog2025 (4) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... proval of the Commissioner (Appeals) on dated 30.11.2021 vide his above referred order is assailed in this appeal. 2. The grounds of rejection, as noted in the order passed by the Commissioner (Appeals) are that the said refund application was barred by limitation since not filed within one year from the relevant date as per provision contained in Section 11B(1) of the Central Excise Act and refund was not allowed on cesses under the said provision of Central Excise Act. 3. During course of hearing of the appeal learned Counsel for the Appellant Mr. Vikash Agarwal has argued that Section 142(3) of the CGST Act has put a none obstinate clause with the wording, "notwithstanding anything to the contrary contained under the provisions of exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-I [ST/Appeal No. 85038 of 2022], M/s. Bank of Baroda Vs. Assistant Commissioner, Division-II, CGST & Central Excise, Mumbai East [2024 (8) TMI 1407], M/s. ATV Projects India Ltd. Vs. Commissioner of Central Excise & Service Tax, Raigad [2023-VIL-876-CESTAT-MUMCE] and more importantly the decision of Gauri Plasticulture Vs. Commissioner of Central Excise, Indore [2019 (30) GSTL 224 (Bom.)], placing reliance on which rejection order was passed differentiated and distinguished in many other cases including by CESTAT Mumbai in the case of Orient Cement (supra) since factual and legal scenario are different. In toto he pleads for acceptance of its refund claim made against accumulated CENVAT Credit on education cess and secondary & higher educ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, Mumbai East as reported in 2024 (8) TMI 1407 in which para 11 of the order passed by the Hon'ble Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. Vs. Union of India and Ors. reported in 2021 (11) TMI 157 Bombay High Court was reproduced to justify that such refund of cess was not expressly barred by the provision of law and Explanation-3 that was added below Explanation-1 & 2 to Section 140 of the CGST Act, has not been notified in the official Gazette of Government of India till date to make it enforceable. It reads: "8. At this juncture, it is required to be added here that Explanation 3 introduced to Section 140 of the CGST Act would no way affect such refund proceeding for the reason that it was not being not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent no. 3 with the power to issue a show-cause notice on the premise that Education Cess, Higher Secondary Education Cess and Personal Account Amounts are not included in Explanations 1 and 2. For sustaining the validity and/or legality of the impugned show-cause notice, the respondent no. 3 could not have relied upon Explanation 3 exclusively to contend that Cess is not included in 'eligible duties and taxes'. As the law now stands, Explanation 3 does not have any application to sub-section (1) of Section 140. The respondent no. 3 while issuing the impugned show-cause notice perhaps overlooked this aspect and also that, parts of the amendments in Explanations 1 and 2 to Section 140 of the CGST Act sought to be introduced by sub-cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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