TMI Blog2022 (2) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... he CGST Act. Since it is the submission of the appellant that the present refund claim has been filed by them under Section 11B, the issue of admissibility of interest needs to be adjudicated in terms of Section 11BB. Since both the authorities have considered the request as per section 11 BB and thereafter rejected the claim to interest in my view appeal should fail on this account also. It is also settled principle in law that nobody should be allowed the benefit of his own wrongs. Appeal dismissed. - Excise Appeal No. 89617 of 2018 - FINAL ORDER NO. A/85168/2022 - Dated:- 23-2-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri V. Ravindran, Advocate, for the Appellant Shri Sanjay Hasija, Superintendent, Authorised Representative for the Respondent ORDER This appeal is directed against order in appeal No PVNS/206/APPEALS THANE/TR/2018-19/4766 dated 13.08.2018 of the Commissioner (Appeals) GST and Central Excise, Thane. By the impugned order, the Commissioner (Appeals) has held as follows: 8.1 The appellant's plea that since this appeal was filed prior to introduction of GST relevant provisions under GST law provide for payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand notice. 2.2 The refund claim was considered by the jurisdictional by the original authority and adjudicated in favour of the appellant vide his order dated 05.05.2017 stating as follows: 10. Further, in the instant case, the claimant has asked for cash refund along with interest from the date of deposit in terms of Section 11BB of Central Excise Act, 1944, However, I find that the amount of refund claimed had been initially paid through Cenvat Credit Account and therefore, it would suffice if the same is allowed as refund by way of credit in the claimant Cenvat Credit Account. And regards the Interest under Section 11BB of Central Excise Act, 1944, the claimant is not eligible for Interest on the refund amount, since as per Section 11BB the interest is chargeable when refund is not made within three months from the date of receipt of application. In view of the above provisions, 1 find that, the claimant is not eligible for interest on the said refund amount as the period of three months from the date of filing of refund claim has not yet expired. 11. In view of the above findings. I Pass the following order: ORDER I hereby sanction the refund cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r P Ltd. [2019 (28) GSTL 244 (T- Hyd)} Gauri Plasticulture Pvt Ltd. {2019-TIOL-1806-HC-Mum-CX] Ratnami Metals Tubes Ltd [2019 (366) ELT 139 9T- Ahmd)] Om Refoils Ltd [2018 (361) ELT 98 (P H)] Servo Packaging Ltd [2020 (373) ELT 550 (T-Chennai) BHEL 2020 (41) GSTL 465 (T-Hyd)] 4.1 I have considered the impugned order along with the submissions made in appeal, in the two written synopsis filed by the appellant and during the course of arguments. 4.4 The only issue for my consideration in this appeal is whether the appellant can be given the benefit of Section 142 (3) of the Central Good and Service Tax Act, 2017, and allowed the refund claim in cash. 4.5 Undisputedly in the present case appellant had filed a refund claim with the jurisdictional Assistant Commissioner claiming refund of ₹ 8,59,420/- on 09.02.2017. The refund claim was adjudged in favour of appellants by the said authority vide order dated 05.05.2017 to the extent of ₹ 8,47,496/-, but instead of allowing the refund in cash, the refund was allowed by the Assistant Commissioner in the CENVAT Credit account of the appellants. As per the order of the Assistant Commissioner, appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and the amount rejected, if any, shall not be admissible as input tax credit under this Act: 4.9 Before we consider the above provisions we take note of Section 1 Section 2 (10) of the said Act, and notification No 1/2017-Central Tax dated 19.06.2017 which are reproduced below: Section 1. Short title, extent and commencement.- (1) This Act may be called the Central Goods and Services Tax Act, 2017. (2) It extends to the whole of India 1[****]2 (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint: Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision. Section 2. Definitions.- In this Act, unless the context otherwise requires,- (10) appointed day means the date on which the provisions of this Act shall come into force; Notification No 1/2017-Central Tax dated 19.06.2017 G.S.R. ..(E).- In exercise of the powers conferred by sub- section (3) of section 1 of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es) specifically cautioned against such instruments stating as follows: We think that time has come for us to depart from the Westminister principle as emphatically as the British Courts have done and to dissociate ourselves from the observations of Shah, J. and similar observations made elsewhere. The evil consequences of tax avoidance are manifold. First there is substantial loss of much needed public revenue, particularly in a welfare state like ours. Next there is the serious disturbance caused to the economy of the country by the piling up of mountains of black money, directly causing inflation. Then there is the large hidden loss to the community (as pointed out by Master Sheatcraft in 18 Modern Law Review 209) by some of the best brains in the country being involved in the perpetual war waged between the tax-avoider and his expert team of advisers, lawyers and accountants on one side and the tax-gatherer and his perhaps not so skilful, advisers on the other side. Then again there is the 'sense of injustice and inequality which tax avoidance arouses in the breasts of those who are unwilling or unable to profit by it'. Last but not the least is the ethics (to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxation to the minimum and such a process does not constitute tax evasion; nor does it carry any ignominy. In support of this submission he relied on the observations of Shah, J. speaking for this Court in Commissioner of Income-tax v. Raman and Co.,( [1968] 67 I.T.R. 11) where it was said: The law does not oblige a trader to make the maximum profit that he. can out of his trading transactions. Income which accrues to a trader is taxable in his hands: income which he could have, but has not earned, is not made taxable as income accrues to him. Avoidance of tax liability by so arranging commercial affairs that charge of tax is distributed is not prohibited. A taxpayer may resort to a device to divert the income before it accrues or arises to him. Effectiveness of the device depends not upon considerations of morality, but on the operation of the Income tax Act. Legislative injunction in taxing statutes may not except on peril of penalty, by violated, but may lawfully be circumvented. Support was also sought from the observations of the same learned Judge (as he then was) in the case of Commissioner of Income tax Gujarat II v. B.M. Kharwar.( [1969] 72 I.T.R. 603.) Afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose who were prepared to adopt them might enjoy the benefits of residence in this country while receiving the equivalent of such incomes, without sharing in the appropriate burden of British taxation. Judicial dicta may be cited which point out that, however elaborate and artificial such methods may be, those who adopt them are entitled to do so. There is, of course, no doubt that they are within their legal rights, but that is no reason why their efforts, or those of the professional gentlemen who assist them in the matter, should be regarded as a commendable exercise of ingenuity or as a discharge of the duties of good citizenship. On the contrary one result of such methods, if they succeed, is of course to increase pro tento the load of tax on the shoulders of the great body of good citizens who do not desire, or do not know how, to adopt these manoeuvres. Another consequence is that the Legislature has made amendments to our Income Tax Code which aim at nullifying the affectiveness of such schemes. Tax planning may be legitimate provided it is within the framework of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the bel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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