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2022 (10) TMI 191 - CESTAT NEW DELHIRefund of unutilized Cenvat credit - time limitation as per Section 11B (2) (c) of the Central Excise Act, 1944 - Section 174(2) read with Section 142 of the CGST Act - HELD THAT:- At the time of implementation of GST Regime, the legislature had perceived as to what would happen to the credit of tax lying in stock as on the date of the introduction of GST, or to the credit balance lying unutilized. Therefore, in order to avoid the double taxation on the goods lying with the business person the Central govt under its wisdom, to pass on the benefit of the unutilized credit whether in inputs or otherwise as closing balance as appeared in ER-I Return filled by the assesses, has introduced above mentioned Transitional Provisions under Chapter XX in GST Act, 2017. The appellant has filed the present refund claim under Section 11B and not under Rule 5 of CCR read with Notification No. 27/2012. Further, it is also found that after the introduction of GST, if the appellant could not transfer the excess debit into TRAN-I, the only option for the appellant remains is to file a refund claim under Section 11B read with Section 142(5). Further, it is found that the impugned order has not disputed the eligibility of credit debited in excess - the appellant is opined to have rightly filed the refund of the amount debited Cenvat credit lying unutilized in his account on the last day of erstwhile Central Excise Act regime i.e. on 30.06.2017 under Section 11B of Central Excise Act, 1944. Further, as per Section 174(2)(c) of CGST Act, the appellant cannot be affected of its right, privilege, in availing credit merely in respect of refund rejected on account of limitation being passed after 27.12.2017. Further, the change in taxation regime should not affect the credit availment right of assessee. Hence the appellant is rightly entitled for the credit and also refund. The refund of said amount in cash remains the only possibility under transitional provisions of GST Act. Those provisions are to protect the claim under Section 11B of erstwhile Act - the appellant is held entitled for refund of amount in question. Appeal allowed - decided in favor of appellant.
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