TMI Blog2022 (10) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order having been passed, which has not been done despite the petitioner having, at para 13 of the refund claim, specifically sought an opportunity of personal hearing prior to disposal of the application. The impugned order is thus set aside and remanded for de novo hearing and disposal, in accordance with law. The officer in the remand proceedings shall test the eligibility of the petitioner to the credit at the outset and render a categoric finding in this regard. The provisions of Section 142 shall thereafter be applied to determine the refund sought. Such exercise shall be completed within a period of eight weeks from date of receipt of this order. Petition disposed off. - DR. ANITA SUMANTH, J. Tarun Gulati , Seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g portion of the demand relating to the period beyond five years was set aside. The entirety of the consequential demand of a sum of Rs.154.16 crores (approx) has been remitted by the petitioner simultaneous with a challenge to the order of the CESTAT before the Hon'ble Supreme Court. This appeal is pending disposal. 5. The amount remitted by the petitioner included, apart from the duty, penalty, interest and fine, countervailing duty (CVD) of an amount of Rs.30.95 crores (approx) and Special Additional Duty (SAD) of a sum of Rs.5.97crores (approx) amounting to a total of Rs.36.93 crores (approx). 6. Pursuant to the remittance of the amount, the petitioner filed an application seeking refund of the amount of Rs.36.93 crores (appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication of Rule 3 of CC Rules r.w. Section 142 (7)(b) of the CGST Act. 11. As far as question of eligibility is concerned, he would draw attention to the fact that the respondent, both in the impugned order as well as in the counter, has acceded to the eligibility of the petitioner to CENVAT credit in terms of Rule 3 of the CC Rules. What remains is merely application of the provisions of Section 142 of the CGST Act to grant the refund sought. 12. He draws attention to the scheme of refund under the GST regime pointing out that Section 140 and 142 operate in different spheres. While Section 140 is a provision that provides for transitional arrangements for the conveyance of credit available in the erstwhile regime to the new regime, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Senior Panel Counsel appearing for R3, contests the eligibility of the petitioner to CENVAT credit. He would point out that the observations made out by the Officer at para 3 and 4 as well as the conclusions in the impugned order merely reiterate the submissions of the refund claim and should not be taken to be an admission of eligibility. 17. Then again, the observation towards the latter half of para 6 of the counter to the effect that 'This amount paid as CVD and SAD on imports is available to the Petitioner for availing as CENVAT Credit only.' is also, according to him, only a passing remark and cannot be taken to be admission of eligibility. According to him, the applicable provision is Section 172(7)(a) and not 7(b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
