TMI Blog2023 (6) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... finding in this regard which was not disputed by the revenue in their appeal before the Commissioner (Appeal) nor Commissioner (Appeal) has recorded any finding to this effect. In the case of EICHER MOTORS LTD. VERSUS UNION OF INDIA [ 1999 (1) TMI 34 - SUPREME COURT] , Hon ble Apex Court observed a right accrued to the assessee on the date when they paid the tax on the raw materials or the inputs and that right would continue until the facility available thereto gets worked out or until those goods existed. Therefore, it becomes clear that Section 37 of the Act does not enable the authorities concerned to make a rule which is impugned herein and, therefore, we may have no hesitation to hold that the Rule cannot be applied to the goods manufactured prior to 16-3-1995 on which duty had been paid and credit facility thereto has been availed of for the purpose of manufacture of further goods. In case of COLLECTOR OF CENTRAL EXCISE, PUNE VERSUS DAI ICHI KARKARIA LTD. [ 1999 (8) TMI 920 - SUPREME COURT] Hon ble Supreme Court has category held that It should also be noted that there is no co-relation of the raw material and the final product; that is to say, it is not as if cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date of Filing Amount 1 July 17-Sept 17 13.06.2018 17,49,237 2 Oct 17-Nov 17 26.09.2018 2,45,445 Total 19,94,682 2.2 The said refund claims were adjudged by the jurisdictional Assistant Commissioner stating as follows: 7. I hereby sanction refund amount of Rs 19,30,237/- (Rupees Nineteen Lakhs Thirty Thousand Two Hundred and Thirty Seven Only) and reject an amount of Rs 64,625/- (Rupees Sixty Four Thousand Six Hundred and Twenty Five Only) under Section 93A of the Chapter V of the Finance Act, 1994 read with the provisions of Notification No 41/2012-ST dated 29.06.2012 as amended. 2.3 Revenue challenged the above order before Commissioner (Appeals) on the following grounds: i. The provision of Notification No 41/2012-ST dated 29.06.2012 ceases to be applicable from 01.07.2017. ii. The provision of time of supply of goods is applicable under Section 12 of CGST Act, 2017 for export of goods during the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xporter claiming the rebate has actually paid the service tax on the specified service to its provider; (d) no CENVAT credit of service tax paid on the specified service used for export of said goods has been taken under the CENVAT Credit Rules, 2004: (e) the claim for refund shall be filed within one year from the date of export of the said goods. (f) the rebate being claimed in this case is not a unit or developer of a Special Economic Zone. ii) Details of the LEO dates after considering the withdrawal are as under: Sr No Period of refund claim Date of filing of refund claim Total refund claimed (In Rs.) First LEO date of the period 1 July 2017 to Sept.2017 13.06.2018 17,49,237/- 04.07.2017 2 Oct. 2017 to Nov.2017 26.09.2018 2,45,445/- 04.10.2017 Total Rs. 1994,682/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been received, the service tax thereon has been paid and the specified service has been used for the export of goods under the relevant shipping bill number. The input service documents submitted by the said claimant contains registration no. of service providers, category of service, invoice no. and date, address of the service provider and particulars of the service tax payable. The compliance of conditions that the said claimant has actually paid the service tax rests with the claimant only. As such, I find that the said claimant has taken the reasonable steps to ensure that appropriate service tax on input service has been paid by them. v) Further it is seen that the difference between the amount of rebate calculated as per scheduled rate (0.07%) and the amount of rebate claimed as per documents is more than 20% of the amount calculated as per scheduled rate. Thus the claimant is fulfilling the condition mentioned in Para No.1(c) of Notification No.41/2012-ST dated 29.6.2012. vi) It is further seen that the question of unjust enrichment does not arise, since the rebate is granted to the exporter of goods by virtue of Notification No. 41/2012-ST dated 29.06.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) The claimant has submitted that they have not credited the credit of trans-1 in GST regime. They are taking refund of goods which are exported and had suffered service tax on it. (iii) As the credit of trans-1 is not credited as it was pregst matter and the same could not be debited in current gst portal. Hence it is not debited to GST portal. ix) Thus, I find that (a) the claim filed is complete in all respect (b) that all documents requiring certification have been filed after due certification (c) and claim is arithmetically accurate. 6. In view of the above findings, the assessee is eligible for refund of Rs. 19,30,237/- in respect of the above claim. Accordingly, I pass the following order. 4.3 For setting aside the order of original authority impugned order records as follows: 8. I have gone through case records, grounds of appeal made by the appellant Department and oral and written submission made by the respondents. The issue to be determined is whether the Adjudicating Authority has rightly sanctioned refund to the respondents or the same was liable to be rejected as contended by the appellant Department. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut tax credit is allowed in two scenarios mentioned in sub-section (3) of section 54 of the CGST Act. These two scenarios are zero rated supplies made without payment of tax and inverted tax structure. In sub-rule (4) and (5) of rule 89 of the CGST Rules, the amount of refund. under these scenarios is to be calculated using the formulae given in the said sub- rules. The formulae use the phrase 'Net ITC' and defines the same as input tax credit availed on inputs and input services during the relevant period other than the input tax credit availed for which refund is claimed under sub rules (4A) or (4B) or both . It is clarified that as the transitional credit pertains to duties and taxes paid under the existing laws viz., under Central Excise Act, 1944 and Chapter V of the Finance Act, 1994, the same cannot be said to have been availed during the relevant period and thus, cannot be treated as part of 'Net ITC' 9. Therefore, from the above, it appears that the respondents have filed refund claim under the repealed Notification and it can be construed that the refund sanctioning authority has erred in sanctioning the subject refund claim. Respondents have conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the procedure specified in paragraph 3; c) the rebate under the procedure specified in paragraph 3 shall not be claimed wherever the difference between the amount of rebate under the procedure specified in paragraph 2 and paragraph 3 is less than twenty per cent of the rebate available under the procedure specified in paragraph 2; d) no CENVAT credit of service tax paid on the specified services used for export of goods has been taken under the CENVAT Credit Rules, 2004; e) the rebate shall not be claimed by a unit or developer of a Special Economic Zone; (2) the rebate shall be claimed in the following manner, namely:- (a) manufacturer-exporter, who is registered as an assessee under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder shall register his central excise registration number and bank account number with the customs; (b) exporter who is not so registered under the provisions referred to in clause (a), shall register his service tax code number and bank account number with the customs; (c) service tax code number referred to in clause (b), shall be obtained by filing a declaration in Form A-2 to the Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Central Excise, as the case may be, having jurisdiction over the factory of manufacture in Form A-1; d) the exporter who is not so registered under the provisions referred to in clause (c), shall before filing a claim for rebate of service tax, file a declaration in Form A-2, seeking allotment of service tax code, to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, as the case may be, of such exporter; e) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall, after due verification, allot a service tax code number to the exporter referred to in clause (d), within seven days from the date of receipt of the said Form A-2; f) on obtaining the service tax code, exporter referred to in clause (d), shall file the claim for rebate of service tax to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the registered office or the head office, as the case may be, in Form A-1; g) the claim f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be, shall, after satisfying himself,- (i) that the service tax rebate claim filed in Form A-1 is complete in every respect; (ii) that duly certified documents have been submitted evidencing the payment of service tax on the specified services; (iii) that rebate has not been already received on the shipping bills or bills of export on the basis of procedure prescribed in paragraph 2;and (iv) that the rebate claimed is arithmetically accurate, refund the service tax paid on the specified service within a period of one month from the receipt of said claim: Provided that where the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, has reason to believe that the claim, or the enclosed documents are not in order or that there is a reason to deny such rebate, he may, after recording the reasons in writing, take action, in accordance with the provisions of the said Act and the rules made thereunder; (4) Where any rebate of service tax paid on the specified services has been allowed to an exporter on export of goods but the sale proceeds in respect of said goods are not received by or on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng unutilised on 16-3-1995 with a manufacturer of tractors falling under Heading No. 87.01 or motor vehicles falling under Headings Nos. 87.02 and 87.04 or chassis of such tractors or such motor vehicles under Heading No. 87.06. However, credit taken on inputs which were lying in the factory on 16-3-1995 either as parts or contained in finished products lying in stock on 16-3-1995 was allowed. Prior to the 1995-96 Budget, the Central excise/additional duty of customs paid on inputs was allowed as credit for payment of excise duty on the final products, in the manufacture of which such inputs were used. The condition required for the same was that the credit of duty paid on inputs could have been used for discharge of duty/liability only in respect of those final products in the manufacture of which such inputs were used. . As pointed out by us that when on the strength of the Rules available, certain acts have been done by the parties concerned, incidents following thereto must take place in accordance with the Scheme under which the duty had been paid on the manufactured products and if such a situation is sought to be altered, necessarily it follows that the right, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t stands cancelled or, if utilised, has to be paid for. We are here really concerned with credit that has been validly taken, and its benefit is available to the manufacturer without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is, therefore, indefeasible. It should also be noted that there is no co-relation of the raw material and the final product; that is to say, it is not as if credit can be taken only on a final product that is manufactured out of the particular raw material to which the credit is related. The credit may be taken against the excise duty on a final product manufactured on the very day that it becomes available. 4.8 Same view has been expressed as per the Section 173 and 174 (2) of the Central Goods and Service Tax Act, 1994 while repealing the Chapter V of The Finance Act, 1994. The said provisions are reproduced below: Section 173. Amendment of Act 32 of 1994.- Save as otherwise provided in this Act, Chapter V of the Finance Act, 1994 shall be omitted. Section 174. Repeal and saving.- (1) Save as otherwise provided in this Act, on and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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