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2022 (3) TMI 1254 - AT - Central ExciseRefund of accumulated balance of credit on education cess and secondary and higher education cess - time limitation u/s 11B of Central Excise Act, 1944 - submission of appellant is that refund of credit of cess cannot be denied merely on the ground that such credit which could not be utilised prior to GST regime would stand lapsed - HELD THAT:- In Bharat Heavy Electricals [2019 (4) TMI 1896 - CESTAT NEW DELHI], a Division Bench of the Tribunal examined whether credits create a vested right and do not extinguish with the change of law and held that change of law cannot be a ground for divesting an assessee from this valuable right and in this connection, the Tribunal placed reliance upon the decision of the Karnataka High Court in Slovak India Trading [2006 (7) TMI 9 - KARNATAKA HIGH COURT]. In Shree Krishna Paper Mills [2019 (12) TMI 1348 - PUNJAB AND HARYANA HIGH COURT], the Punjab and Haryana High Court examined whether refund could be ordered of unutilised credit on closure of the unit and held, in view of the earlier decision of the Punjab and Haryana High Court in Rama Industries Ltd. vs. CCE, Chandigarh [2009 (2) TMI 136 - PUNJAB AND HARYANA HIGH COURT] and the decision of the Karnataka High Court in Slovak India [2006 (7) TMI 9 - KARNATAKA HIGH COURT], that refund should be granted. It is, therefore, seen that there are conflicting decisions of the Karnataka High Court and the Punjab and Haryana High Court on the one hand and the Rajasthan High Court on the other hand. The decision of the Karnataka High Court in Slovak India was affirmed by the Supreme Court. It would, therefore, be appropriate to follow the view taken by the Karnataka High Court and the Punjab and Haryana High Court. It needs to be noted that CENVAT credit avail is a vested right as has held by the Supreme Court in Eicher Motors [1999 (1) TMI 34 - SUPREME COURT]] and Samtel India [2003 (3) TMI 121 - SUPREME COURT]. The appellant is, therefore, clearly entitled to the refund of the balance amount of credit of cess and the decision to the contrary taken by the Commissioner (Appeals) cannot be sustained - appeal allowed - decided in favor of appellant.
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