TMI Blog2021 (4) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 (8) TMI 758 - CESTAT BANGALORE] has held that cash refund is not admissible under rule 5 of CENVAT Credit Rules read with Notification No.27/2012-CE dt. 18/06/2012 in respect of clearances made by one EOU to another EOU on IUT basis. It was also held that the amounts in respect of cash refund has been claimed were debited in the cenvat credit account at the time of filing the refund claim as required under the said Notification and the appellant was entitled to take recredit of the cenvat credit. Further after going through the sub-section 3 of Section 142 of CGST Act, it is found that as per the said sub-section, every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944. The impugned order denying the cash refund is not sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 dated 13-05-2019 2 Apr 2015 to June 2015 17,59,106/- 4,61,051/-vide OIO No 133/2016-(R) dared 30-09-2016 12,98,055/- 3 July 2015 to September 2015 13,72,971/- 1,94,402/- 11,78,569/- Aggrieved by the orders of the Deputy Commissioner, the appellants preferred separate before the Commissioner (Appeals) and the Commissioner (Appeals) vide the impugned OIA No 141-147/2019 dated 13-05-2019 wherein the orders of the Deputy Commissioner were upheld except to the extent of holding that the appellants were entitled to cash refund for the months of January 2015 to February 2015 and not for the month of March 2015 onwards. Hence the present appeals. 4. Heard both sides and perused the records. 5.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that there is no dispute about the fact that the appellants are 100% EOU and holders of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,261/- 2 Apr 2015 to June 2015 ₹ 12,98,055/- 3 July 2015 to September 2015 ₹ 11,78,569/- 5.2. It is his further submission that OIOs had been passed by the Deputy Commissioner during the year 2016 i.e. before the Central Excise law was replaced by the GST regime as the appellants had agitated the matter before the Commissioner (Appeals) as on the date GST levy came into existence from 1st July 2017. Learned consultant referred to the provision of Section 142 of Central Goods and Services Tax Act, 2017, mainly sub-section (3) and sub-section (6)(a) of Section 142. He also submitted that as per sub-section (3) of Section 142, Every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Machine (Chennai) P. Ltd Versus Commr. Of Central Tax, [2019 (27) G.S.T.L 218 (Tri-Chennai)] v. Great India Steel Fabricators Versus Commissioner of C.Ex S.T [2019 (28) G.S.T.L 279 (Tri-Chan)] 6. On the other hand the learned AR defended the impugned order and submitted that the Commissioner(Appeals) after considering the amendments which came into effect by Notification No.6/2015-CE(NT) dt. 01/03/2015 amending the export of goods and after considering the decisions, has rightly held that the appellant is not entitled for cash refunds because they have not physically exported the goods to the extent of rejection of refund. 7. After considering the submissions of both sides and perusal of the material on record, I find that in the present case, the appellant is a 100% EOU, which has admittedly supplied the goods to another EOU and filed refund claims under Rule 5 read with Notification No.27/2012 dt. 18/06/2012. Further I find that the goods were supplied by the appellant to another EOU after coming into force of the amendment in Rule 5. Further I find that with the insertion of clause (1A) in Explanation 1 to Rule 5 came into force vide Notification No.6/2015-CE( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, the same shall, unless recovered under the existing law, be recovered as an arrear of tax under this Act and the amount so recovered shall not be admissible as input tax credit under this Act. 8. Further I find that this Tribunal in the case of Wave Mechanics Pvt. Ltd. cited supra has held that cash refund is not admissible under rule 5 of CENVAT Credit Rules read with Notification No.27/2012-CE dt. 18/06/2012 in respect of clearances made by one EOU to another EOU on IUT basis. It was also held that the amounts in respect of cash refund has been claimed were debited in the cenvat credit account at the time of filing the refund claim as required under the said Notification and the appellant was entitled to take recredit of the cenvat credit. Further after going through the sub-section 3 of Section 142 of CGST Act, I find that as per the said sub-section, every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be pai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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