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2020 (1) TMI 188 - CESTAT HYDERABADCash Refund of amount remaining unutilized in Education Cess (EC), Secondary & Higher Education Cess (SHEC) and Krishi Kalyan Cess (KKC) - restriction on Carry forward of credit pertains to EC, SHEC and KKC - transition to GST regime - section 11B of the Excise Act - HELD THAT:- Section 11B allows refund of duty paid and not of Cenvat credit. In the scheme of Cenvat, the duty/service tax/cesses which have been paid can only be taken as credit by the manufacturer and utilized towards payment of duty/service tax/Cesses, etc., on their final products. There is no scheme under which Cenvat credit can be refunded to them in cash except under Rule 5 of Cenvat Credit Rules (CCR), 2004 in respect of Cenvat credit utilized in manufacture exported goods or exported services - Since export of both goods and services are exempt, cash refund of Cenvat credit which has gone into manufacture of the goods exported or services exported is allowed under Rule 5 of CCR, 2009. Otherwise, there is no provision under which Cenvat credit can be refunded in cash. The judgment of the Larger Bench of the Hon’ble High Court of Bombay in M/S. GAURI PLASTICULTURE P. LTD., BOMBAY DYEING & MANUFACTURING CO. LTD., M/S. SIMPLEX MILLS CO. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, INDORE, THE COMMISSIONER OF CENTRAL EXCISE, MUMBAI IV, THE UNION OF INDIA THROUGH THE COMMISSIONER OF CENTRAL EXCISE MUMBAI I [2019 (6) TMI 820 - BOMBAY HIGH COURT] was precisely on the point as to whether the assessee can get cash refund of Cenvat credit which they were not able to utilize and it was answered in negative. The Hon’ble High Court of Madras in SUTHERLAND GLOBAL SERVICES PRIVATE LIMITED VERSUS ASSISTANT COMMISSIONER CGST AND CENTRAL EXCISE, COMMISSIONER OF CGST AND CENTRAL EXCISE, GOVERNMENT OF TAMIL NADU, UNION OF INDIA, CENTRAL BOARD OF EXCISE AND CUSTOMS, THE CHAIRMAN, GSTN [2019 (11) TMI 278 - MADRAS HIGH COURT] was examining a different issue as to whether the precision of the credit of EC, SHEC & KKC into the new GST regime was permissible or otherwise. The Hon’ble High Court of Madras has not dealt with the issue of cash refund of unutilized Cenvat credit which is the question in dispute. Thus, there is no legal provision under which the assessee’s appeal could be entertained - appeal dismissed.
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