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TMI Blog2025 (4) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... period April 2017 to June 2017 on 19.07.2017. The breakup of the Cess amount is as follows: Education Cess (EC) INR 3,38,482 Secondary Higher Education Cess (SHEC) INR 1,69,218 Total INR 5,07,700 The credit of cess was carried forward to the GST regime through form GST Tran-1 as prescribed under CGST Act. Subsequently, vide CGST (Amendment) Act, 2018 notified on 01.02.2019 an amendment was made inserting explanation on that the "eligible duties" allowed to be transitioned does not include Cess by amending Section 140(1)a of CGST Act, 2017. The appellant was in receipt of an e-mail notice on 04.09.2019 from the Department directing to reverse the credit of the Cess amount. Accordingly, appellant reversed the credit under protest and filed refund application in Form-R for an amount of Rs. 5,07,700/- claiming the refund of Cess. 3. Learned CA for the appellant have reiterated the grounds of appeal. The impugned order has been passed without considering the submissions of the appellant. Thus, the order under challenge has wrongly denied eligibility of appellant for the impugned refund. Order is accordingly prayed to be set aside and appeal is prayed to be allowed. He h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds manufactured, and with effect from 01.06.2015, the availment thereof has also been abolished on output services. So these credit balances have been lying in the books of accounts of the appellant from 01.03.2015 onwards, since, while amending the provisions of Rule 3(7)(b) of the Cenvat Credit Rules, 2004 in 2015, the Government had not brought in any amendment for refund of the impugned cess lying unutilized as on that date, which indicates that the government has consciously not provided for refund of the impugned CENVAT credit balances of the said cess. Such being the case, it is unreasonable to assume that the provisions of the GST Acts has provided for such refunds, since there is no provision under the GST Acts expressly providing for such refunds." 7. The Central Goods & Services Tax Act, 2017 Section 140 provides transitional arrangement for input tax credit in which provided that (1) A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, the amount of CENVAT credit 1[of eligible duties] carried forward in the return relating to the period ending with the day immediately preceding the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In the case of CCE, Cus & ST, Tirupati Vs Rani Plastic Pipe Industries, supra, CESTAT, Hyderabad Division Bench held as follows: "In view of the above, we find that the ratio of the judgement of the Larger Bench of the Hon'ble High Court of Bombay is binding and prevails and accordingly no refund of Modvat/Cenvat credit can be sanctioned to the respondent. We also find that the law has now been laid down by the constitutional bench of the Hon'ble Supreme Court in the case of Dilip Kumar and Company & other [2018 (361) ELT 577 (SC)] and it is held that the fiscal laws must be interpreted as they are, without any intendment, regardless of the consequences. As per the ratio of this judgment also we cannot sanction a refund against the explicit provisions. In view of the above, the appeal filed by the Revenue is allowed and the impugned order is set aside." In the case of Banswara Syntex Ltd., Vs CCE & ST, Udaipur, supra, Rajasthan High Court held as follows: "The Act of 1944 does not contain any provision for refund of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra, CESTAT, New Delhi held as under: The CESTAT Division Bench New Delhi was dealing with refund claim of Cenvat credit pertaining to Ed. Cess and S&H Education Cess. The CESTAT after examination of various provision including Cenvat Credit Rules (CCR) Section 11B, Section 142 (3) of CGST Act held as follows: "5.8. As the amount of Cenvat credit balance of E. Cess & SHE Cess was included in the carried forward amount by the appellant as on the appointed day i.e. 01.07.2017, in terms of Section 142(3) of the CGST Act 2017, refund of the same is not admissible to the appellant. Thus, it is clear that "taking" of the input credit in respect of Education Cess and Secondary and Higher Education Cess in the Electronic Ledger after 2015, after the levy of Cess itself ceased and stopped, does not even permit it to be called an input Cenvat credit and therefore, mere such accounting entry will not give any vested right to the Assessee to claim refund of the said amount. If one carefully compares all Sub-sections of Section 140, one can discern that while all other Sub-sections talk of "entitled to take credit", Sub-section (8) uses the word "allowed to take". The utilisation of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been enjoyed and availed of irrespective of the period or time provided therein. 10. Learned CA for the appellant relied on Granules India Ltd., supra, which was decided by this Hyderabad Bench. In that case, it was decided by the Division Bench that assessee is entitled to claim refund of CVD and SAD paid after the appointed day under the existing law. This appeal is not related to CVD and SAD. Therefore, it is not applicable in this matter. He further cited Orient Cement Ltd., supra, it is considered by the Bombay High Court in the case of Nelco Ltd., supra and finally observed as mentioned in Nelco Ltd., decision. 11. As discussed above, the Cesses are excluded by adding explanation 3 in the Section of the 140 of The Central Goods and Service Tax Act, 2017 from definition "eligible duties and taxes". The credit is not available as refund. Hon'ble Supreme Court, different Hon'ble High Courts and CESTAT Benches including this Bench held that Education Cess and Secondary Higher Education cess is not refundable as discussed supra. Therefore, I do not find any legal or factual infirmity in the Order-in-Appeal. 12. In the light of entire above discussion, I hold that there ..... 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