TMI Blog2021 (7) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit of service tax has increased by ₹ 16,50,384/- (Rupees Sixteen Lakhs Fifty Thousand Three Hundred and Eighty Four only). Thereafter, the appellant filed a claim for refund fo ₹ 16,50,384/- (Rupees Sixteen Lakhs Fifty Thousand Three Hundred and Eighty Four only) on 30/07/2018 relating to the period from September 2015 to June 2017 in accordance with the provisions of Section 142(9)(b) of CGST Act, 2017. On scrutiny of the refund application, appellant was issued a show-cause notice dated 29/10/2018 proposing to reject the refund claim on the ground of non-submission of document and filing of the refund claim after the expiry of relevant date in terms of Section 11B of the Central Excise Act. Appellant filed detailed reply to the show-cause notice and surrendered the cenvat credit aggregating to ₹ 18,581/- (Rupees Eighteen Thousand Five Hundred and Eighty One only) and ₹ 56,910/- (Rupees Fifty Six Thousand Nine Hundred and Ten only) treating it as claimed erroneously and thereby resulting in the downward revision of the claim of refund aggregating to ₹ 15,74,893/- (Rupees Fifteen Lakhs Seventy Four Thousand Eight Hundred and Ninety Three only). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e registered person in the scenario where the carry forwared unutilized balance of cenvat credit has increased on account of filing of the revised returns under Service Tax filed during the GST regime. Learned consultant also referred to para 14 of the impugned order passed by the original authority and upheld by the learned Commissioner where they have relied on Rule 117 of CGST 2017 and rejected the refund. Learned consultant further submitted that both the authorities have failed to appreciate that it is a settled legal position that Rules are made to ensure proper implementation of any statute and shall be framed in line with the provisions of the various Sections and further the Rules cannot go beyond the provisions of the statute and in the event of conflict between the two, the Act shall prevail over the Rules. He further submitted that the Bombay High Court in the case of Uttam Steel Ltd. Vs. Union of India 2003 (158) E.L.T. 274 (Bom.) has observed that it has been consistently held by various appellate authorities that the substantive benefit of the claimant cannot be denied on the ground of procedural lapse and non submission of the claim within the prescribed time is j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth 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. Here it is relevant to reproduce the said provision of Section 142(9) (b) of CGST Act, 2017 which is reproduced herein below for reference. (b) where any return, furnished under the existing law, is revised after the appointed day but within the time limit specified for such revision under the existing law and if, pursuant to such revision, any amount is found to be refundable or Cenvat credit is found to be admissible to any taxable person, the same shall be refunded to him in cash under the existing law, notwithstanding anything to the contrary contained in the said law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944) and the amount rejected, if any, shall not be admissible as input tax credit under this Act. 5.1. Further I find that it is a settled legal position that if there is a conflict between the substant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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