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2024 (1) TMI 1272 - CESTAT HYDERABADSeeking refund in cash as CENVAT Credit cannot be utilized - entire amount of differential customs duty (basic customs duty + CVD + SAD) has been paid by the appellant after about nine years after the initial date of imports, on account of non-fulfilment of Export obligation - whether CVD+SAD as part of Custom Duties paid subsequent to 01.07.2017 on account of non-fulfilment of Export Obligation, are eligible for cash refund when the Appellant cannot take these amounts as Cenvat Credit? HELD THAT:- In the case of OSI SYSTEMS PVT LTD VERSUS COMMISSIONER OF CENTRAL TAX RANGAREDDY - GST [2022 (9) TMI 801 - CESTAT HYDERABAD], this Bench while dealing the issue as to whether the Service Tax paid on RCM basis subsequent to 01.07.2017, which otherwise is eligible as Cenvat Credit, can be taken as cash refund u/s 142(3) of CGST Act, 2017 was considered and has held 'no unjust enrichment is attracted as the appellant have admittedly paid service tax in August, 2018 out of their own pocket.' - the above case law is also squarely applicable to the facts of the present case. Admittedly, the Department was not aggrieved by the Order-in-Original passed and no further appeal was preferred by the Department before Commissioner (Appeals). Further, there are force with the appellant’s arguments that the entire amount in question was paid almost after nine years from the date of imports. Therefore even on hypothetical basis there would be no possibility of the appellant passing on the customs duty burden on any other party. Therefore, the Revenue arguments on this issue is rejected. The impugned order is set aside - Adjudicating Authority is directed to grant the refund along with interest, which is to be calculated from the initial date of filing the refund claim - appeal allowed.
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