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TMI Blog2021 (12) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... GST, they migrated to GST and obtained necessary registration. 2. During the period from March 2017 to June 2017, the appellant received various inputs and input services into their factory for the use in their manufacturing activity. As per the provisions under CENVAT Credit Rules, 2004, as amended in 2015, the appellants were eligible to avail credit of the duty / tax paid on inputs and input services within a period of one year. However, they had not availed the credit on such inputs and input services till 30.6.2017. They had filed the ER-1 returns for this period without reflecting the credit on the inputs and input services. After introduction of GST with effect from 1.7.2017, the appellant could not process for carry over through T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces could not be availed before 30.6.2017, the same was not reflected in the ER-1 returns filed by them. It could not be carried forward through TRAN-1 to new GST regime. 5. The learned counsel submitted that the department has no case that the credit availed by them for which refund claim has been filed is ineligible. The refund claim has been rejected merely stating that the appellant has not availed the credit and carried forward to GST regime by filing TRAN-1. That the time for filing such TRAN-1 has expired on 27.12.2017 and therefore the appellant cannot claim refund. 6. The learned counsel adverted to Section 142(3) of CGST Act, 2017. This sub-section states that the refund claim has to be processed under erstwhile law. He argued t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for refund of the CENVAT credit where for any reason the credit is not able to be utilized. Various other decisions were also relied to support this argument. 10. Alternatively, the learned counsel submitted that the appellant has to be refunded the amount of duty / tax paid on the inputs / input services as a buyer / receiver. The appellant follows the guidelines of the Institute of Chartered Accountants of India whereby in costing of the inputs / input services, the value of such inputs / input services is taken bare of tax element. It is clear that the tax has not been passed on to another person. Thus, there is no unjust enrichment and the appellant is entitled for the refund of the duty / tax element borne by them on the input / inp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Adfert Technologies Pvt. Ltd. Vs. Union of India - 2020 (32) GSTL 726 (P&H), it is held that transitional credit being vested right cannot be taken away on procedural or technical ground. This decision was upheld by the Hon'ble Supreme Court as reported in 2020 (34) GSTL J138 (SC). Again, the jurisdictional Hon'ble High Court in the case of Tara Exports Vs. Union of India reported in 2019 (20) GSTL 321 (Mad.) has held that GST law contemplates seamless flow of tax credit on all eligible inputs. It is settled legal position that substantive credit cannot be denied on procedural grounds. 15. In the present case, at the cost of repetition, the appellant would be eligible to avail credit but for the introduction of GST law. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is arising only after the appellant reversed the amount on 27.02.2019. The refund was admittedly filed on 05.04.2019 i.e well within the prescribed time limit of 1 year in terms of section 11B. Therefore, in my considered view, the refund was filed well within the time. Hence, the same is not time barred. As submitted by the Learned Authorized Representative the issue of unjust enrichment need to be verified at the time when the refund is to be granted to the assessee. Therefore in the present case also though the refund is not 4 | P a g e S T / 1 0 5 1 6 / 2 0 2 0 hit by limitation but the fact that whether the incidence of the refund amount has been passed on or otherwise needs to be examined by the sanctioning authority." 16. The Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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