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2021 (7) TMI 326 - AT - Service TaxRefund of service tax - Transition of credit to GST - rejection of refund claim on the ground of non-submission of document - also refund claim was filed after the expiry of relevant date - Section 11B of the Central Excise Act - HELD THAT:- Initially the appellant filed the ST-3 returns on 31/08/2017 for the period from April 2017 to June 2017 and utilized the entire cenvat credit and the closing balance was ‘nil’ and in the transitional return in form GST Tran-1, he filed the ‘nil’ value and did not carry forward any unutilized balance of cenvat credit. Subsequently, he realized that he did not avail the cenvat credit and KKC totally amounting to ₹ 16,50,384/- and filed a revised return in view of Section 142(9)(b) of CGST Act, 2017 but the original authority issued to the appellant, a show-cause notice proposing to deny the refund for non submission of documents and on the ground of limitation under Section 11B of the Central Excise Act. It is found that after the reply to the show-cause notice, appellant reduced the claim of cenvat credit for refund to the tune of ₹ 15,74,893/- by surrendering some amount of cenvat credit and KKC and restricted the refund to ₹ 15,74,893/-. Further both the authorities have not considered the submissions of the appellant that primarily the appellant is claiming the refund of cenvat credit in terms of Section 142(9) (b) of the CGST Act, 2017. Both the authorities have held that refund is time-barred in view of Section 11B of the Central Excise Act, 1944. The words “notwithstanding anything contrary contain in said law” means that the provisions of this Section will prevail over provisions of existing law except provision of Section 11B(2) of Central Excise Act, 1944. The Section 11B(2) of Central Excise Act, 1944 contains provisions relating to granting of refund in case of unjust enrichment. Thus, as far as conditions of Section 142(9)(b) of CGST Act, 2017 is concerned, the appellant has fulfilled the said conditions and hence is entitled for refund - it is a settled law that whenever two options are available, the assessee may choose the option which is more beneficial for them and in the present case the assessee/appellant has chosen to file the refund claim under Section 142(9)(b) of CGST Act, 2017 which has a overriding effect over Section 11B of Central Excise Act, 1994. The appellant did not choose to carry forward the credit in Tran-1 and preferred to claim cash refund as provided under Section 142(9) (b) of CGST Act, 2017. The impugned order holding that appellant is entitled for cash refund in view of Section 142(9) (b) of the CGST Act is set aside - case remanded back to the original authority for the limited purpose of verification of the invoices/documents - appeal allowed by way of remand.
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