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2021 (6) TMI 749 - AT - Service Tax100% EOU - refund of unutilized CENVAT credit - time limitation - Section 11B and not under Rule 5 of CCR read with N/N. 27/2017 - HELD THAT:- It is not disputed that the appellant debited an amount of ₹ 60,12,607/- which resulted in excess debit of ₹ 12,44,979/-. Further, the appellant has filed the present refund claim under Section 11B and not under Rule 5 of CCR read with Notification No.27/2017. Further, also after the introduction of GST, the appellant could not transitioned the excess debit into TRAN-I. In that case, the only option for the appellant was to file a refund claim under Section 11B read with Section 142(5) - the impugned order has not disputed the eligibility of credit debited in excess. After the introduction of GST in July 2017, there is no option provided to the noticee to avail CENVAT credit, as the returns have been suspended with regard to erstwhile regime. Consequently, the noticee filed the refund of the amount debited in excess in terms of provision 142(3) of CGST Act which was allowed as credit. The impugned order wrongfully invoked the Section 142(3) to reject the refund claim. It is a fact that if CGST Law was not introduced, the appellant would have availed credit in ER-1 Returns and as per Section 174(2)(c) of CGST Act, the appellant cannot be effected of its right, privilege, in availing credit merely in respect of refund rejected on account of limitation being passed after 27.12.2017 - thus, 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 impugned order denying the refund by invoking Section 142(3) is not sustainable in law - Appeal allowed - decided in favor of appellant.
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