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TMI Blog2025 (4) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... xable services. Appellant had a closing balance of Rs. 14,56,075/- consisting of Education Cess, Secondary Higher Education Cess and Krishi Kalyan Cess in the ER-1 returns filed by them for the month of June 2017 and Service Tax Returns filed for the period of April to June 2017. The break-up of the Cess amount is as follows: Education Cess (EC) INR 7,36,372 Secondary Higher Education Cess (SHEC) INR 3,67,396 Krishi Kalyan Cess (KKC) INR 3,52,307 Total INR 14,56,075 The credit of cess was carried forward to the GST regime through form GST Tran-1 in view of guidance note on CGST Transitional Credit issued by CBFC dated 19.03.2018. 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 retrospectively with effect from 17.07.2017. The appellant had filed a refund application in Form-R for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained under the provisions of existing law other than provisions of Section 11B(2) of Cenral Excise Act, 1944. The said section has two provisos. The first proviso states that where any claim for refund of Cenvat credit is fully or partially rejected, the amount so rejected shall laps. Cesses are not eligible duty to carry forward for transitioned to GST. Accordingly, the right to claim the same as refund would not also allowed." 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 appointed day, furnished by him under the existing law 2[within such time and] in such manner as may be prescribed: The word eligible duties explained by explanation 1 & 2 of the Section 140 but any Cess excluded by explanation 3 of the Section 140 which is as thus: Explanation 3.- For removal of doubts, it is hereby clarified th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Excise Duty or other levies payable under the Act, until and unless the same are proved to have been erroneously paid or recovered with a further proof that its burden has not been passed on to the customers." "Since the CENVAT Credit Rules, the repository of rights of an assessee to avail credit of the duty or other sums paid on i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 credit, even if taken in Electronic Ledger and notified in Form TRAN-1, does not guarantee any such right of utilisation independent of other parts of Section 140 specially ignoring Explanation 3. In the case of Bharat Heavy Electricals Ltd., Vs CCE, Secunderabad, GST, supra, CESTAT, Hyderabad held as follows: The CESTAT Single M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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