TMI Blog2021 (8) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has held in the case of UNION OF INDIA VERSUS SLOVAK INDIA TRADING CO. PVT. LTD. [ 2006 (7) TMI 9 - KARNATAKA HIGH COURT] which has been relied upon by the Division Bench of the Delhi Tribunal in the case of BHARAT HEAVY ELECTRICALS LTD VERSUS COMMISSIONER OF CENTRAL TAX SECUNDERABAD - GST [ 2020 (1) TMI 188 - CESTAT HYDERABAD] has categorically held that refund can be granted of the cesses viz. Education Cess and Higher Education Cess which could not be transitioned into GST. The findings in the impugned order regarding time-bar is beyond the show-cause notice as well as Order-in- Original and the same is not sustainable in law - Appeal allowed - decided in favor of appellant. - Central Excise Appeal No. 20320 of 2020 - Final Order No. 20697/2021 - Dated:- 19-8-2021 - S.S GARG, JUDICIAL MEMBER For the Appellant : Mr. Akbar Basha, CA For the Respondent : Mr. P. Gopakumar, Joint Commissioner (AR) ORDER The present appeal is directed against the impugned order dated 23/06/2020 passed by the Commissioner of Central Tax (Appeals), Bangalore whereby the appeal of the appellant is dismissed and the order of rejection of refund passed by the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Education Cess credit and therefore the appellant is rightly entitled to refund of Education Cess and Higher Education Cess. He also submitted that the impugned order while rejecting the refund of Education Cess has relied on the transitional provision under 140(1) to deny the refund claim of credit of cess assuming that the refund is filed under GST whereas the present claim is not filed under Section 142 of GST but is filed under Section 11B of the Central Excise Act. He further submitted that with the introduction of GST, assessee in respect of balance of cenvat credit lying in his account was left with only three options which is also admitted in para 6 of the impugned order viz. (a) refund of cenvat credit in terms of existing law (b) transfer to the ITC Ledger of GST regime through Tran-1 and lapse of cenvat credit. He further submitted that these accumulated credits of cess were not transitioned into GST due to specific restriction under Section 140(1), the appellant had to resort to the option of refund under existing law to avoid lapsing of credit. He further submitted that this issue of refund of cenvat credit of cesses has been considered by the Division Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Jain Vanguard Polybutylene Ltd. 2010 (256) E.L.T. 523 (Bom.) Bangalore Cables P. Ltd. Vs. CCE 2017 (347) E.L.T. 100 (Tri.-Bang.) Shalu Synthetics Pvt. Ltd. Vs. CCE 2017 (346) E.L.T. 413 (Tri.-Ahmd.) Century Rayon Twisting Unit Vs. CCE 2015 (325) E.L.T. 205 (Tri.-Mum.) CCE Vs. Kores (India) Ltd. 2009 (245) E.L.T. 411 (Tri.-Bang.) 3.2 He further submitted that right to carry forward credit is a right or privilege acquired and accrued under the repealed Central Excise Act, 1944 and it has been saved under Section 174(2)(c) of the CGST Act, 2017 and therefore it cannot be allowed to lapse under Rule 117 as held in the case of M/s. Siddharth Enterprises Vs. Nodal Officer 2019-TIOL- 2068-HC-AHM-GST. He further submitted that credit of cess is appellant s vested right and had the GST law not introduced, then the appellant would have continued the said credit as assets in its books and with the introduction of new law the credit in the books cannot be made to lapse which will result in loss to the company. 4. On the other hand, the learned DR reiterated the findings of the impugned order and submitted that the cash refund of the unutilized cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Co. Pvt. Ltd. (cited supra). He further submitted that the decision in Slovak India Trading Co. Pvt. Ltd. being a decision of the jurisdictional High Court would prevail over other decisions as held in the case of CCE ST Vs. Andhra Sugars Ltd. 2015 (319) E.L.T. 297 (A.P.) and Larger Bench decision of the Tribunal Bangalore in J.K. Tyre Industries Ltd. Vs. Asst. Commissioner of Central Excise 2016 (340) E.L.T. 193 (Tri.- LB). He also submitted that the Division Bench decision of the Delhi Tribunal on the same issue has neither been rebutted nor distinguished by the Tribunal, Hyderabad in rendering the contrary judgment. He further submitted that the decision of the Rajasthan High Court in the case of Banswara Syntex Ltd. relied upon by the learned DR is also not applicable in the present case because the appellant has relied on the relevant extract of Section 142(6)(a) of the CGST Act, 2017 which allows eligible claim of credit to be refunded in cash and the Hon ble Rajasthan High Court in Banswara Syntex (supra) denying refund of accumulated credit has not referred to provision under Section 142(6)(a) that allows refund. Therefore, the said decision is also not applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted right in terms of the Hon ble Apex Court judgment in Eicher Motors case and will not extinguish with the change of law unless there was a specific provision which would debar such refund. It is also not rebutted by the revenue that the appellants had earned these credits and could not utilize the same due to substantial physical or deemed exports where no Central Excise duty was payable and under the existing provisions, had the appellants chosen to do so they could have availed refunds/rebates under the existing provisions. There is no provision in the newly enacted law that such credits would lapse. Thus merely by change of legislation suddenly the appellants could not be put in a position to lose this valuable right. Thus we find that the ratio of Apex courts judgment is applicable as decided in cases where the assessee could not utilize the credit due to closure of factory or shifting of factory to a non dutiable area where it became impossibly to use these credits. Accordingly the ratio of such cases would be squarely applicable to the appellant s case. Following the judgment of Hon ble Karnataka High Court in the case of 2006(201) E.L.T ..... 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