TMI Blog2024 (1) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... , I hold that the appellant is entitled to refund under the provisions of Section 142(3) and (6) of the CGST Act. In above case law, the issue was identical i.e., as to whether CVD+SAD as part of Custom Duties paid subsequent to 01.07.2017 on account of non-fulfilment of Export Obligation, are eligible for cash refund when the Appellant cannot take these amounts as Cenvat Credit. The co-ordinate Benches of Tribunal have been consistently holding that the Appellant would be eligible for Cenvat Credit. The issue in the present appeal is squarely is covered by the above decision. The Adjudicating Authority is directed to grant the refund along with interest, which is to be calculated from the initial date of filing the refund claim - appeal allowed. - Mr. R. MURALIDHAR, MEMBER (JUDICIAL) Shri P. Venkata Prasad, CA for the Appellant. Shri V.R. Pavan Kumar, AR for the Respondent. ORDER The Appellant M/s Sri Chakra Poly Plast India Pvt Ltd., was not in a position to fulfil the export obligation for the capital goods procured by them under EPCG License. They have calculated the Customs Duty foregone and paid the total Customs Duty of Rs.11,32,417/-, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en filed at a point of time when the CGST Act had not been enacted, an appeal would lie before the Tribunal against an order passed on the application filed for refund of CENVAT credit. What has to be seen is whether an appeal can be filed before the Tribunal after the coming into force of the CGST Act against an order passed under sub-section (3) of section 142 of the CGST Act. In view of the specific provisions of sub-section (3) of section 142 of the CGST Act, every claim for refund after 01.07.2017 has to be disposed of in accordance with the provisions of the existing law i.e. Chapter V of the Finance Act and the Central Excise Act. This would mean that the appellate provisions would continue to remain the same. This position is also explicit from the provisions of sub-section (6)(b) of section 142 of the CGST Act, wherein it has been provided that every proceeding of appeal, review or reference relating to recovery of CENVAT credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of the existing law. 45. Section 174(2)(f) of the CGST Act also provides that the repeal of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erry [2020 (373) ELT 550 (Tri-Chennai)] and the Final Order No. 40158-40171/2022 dated 06.05.2022 in the case of Aurobindo Pharma Ltd vs CC, Chennai-II. He reiterates the findings of the Lower Authorities. Accordingly, he submits that the present Appeal is required to be dismissed. 8. Heard both sides and perused the documents and the cited case laws. 9. On going through the copy of challan produced by the Appellant, it is seen that it has been submitted that Duty of Customs amounting to Rs.11,32,417/- has been paid, in which CVD+SAD of Rs.2,97,797/- are integral part. From the Order portion of OIO, it is seen that there is no dispute that the amount of Rs.2,97,797/- is on account of payment of CVD SAD only. 10. In the case of Mithila Drugs Pvt Ltd vs CGST, Udaipur [2022 (3) TMI 58 CESTAT New Delhi], the Delhi Bench has held as under: 7. Having considered the rival contentions, I find that the payment of CVD and SAD subsequently during GST regime, for the imports made prior to 30.06.2017 is not disputed under the advance authorisation scheme. It is also not disputed that the appellant have paid the CVD and SAD in August, 2018 by way of regularisation on being so p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as input tax credit under this Act: Provided that no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act; (Underlined to emphasise) 9. It is an admitted fact of the parties that the said CENVAT Credit balance was not carried forward to the Appellant s account on the appointed date since it was not due on the said day also. Therefore, in view of clear provision contain under Section 142(6)(a) of the CGST Act, Claimant/Appellant is eligible to get the refund of credit by cash except where unjust enrichment is alleged or established against the Appellant. The Appellant is also otherwise eligible to go for availment of transitional credit through filing required forms in Tran-I as per the order passed by the Hon'ble Supreme Court on 22nd July, 2022 but in view of the observation of this Tribunal read with Section 142(6)(a) of the CGST Act that such CENVAT Credit amount shall be paid to the Appellant in cash, it can t avail dual benefits once order of this Tribunal is duly complied by the Respondent- Department by the closing date of the window. [Emphasis supplied] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut by the Revenue Authority. Further, I find that the Court below have erred in observing in the impugned order, that without producing proper records of duty paid invoices etc. in manufacture of dutiable final product, refund cannot be given. I further find that refund of CVD and SAD in question is allowable, as credit is no longer available under the GST regime, which was however available under the erstwhile regime of Central Excise prior to 30.06.2017.Accordingly, I hold that the appellant is entitled to refund under the provisions of Section 142(3) and (6)of the CGST Act. 8. Accordingly, I direct the jurisdictional Assistant Commissioner to grant refunds to the appellant of the amount of SAD CVD as reflected in the show causes notices and also in the orders-in-appeal. Such refund shall be granted within a period of 45 days from the date of receipt of order along with interest under Section 11BB of the Central Excise Act. The impugned orders are set aside. 12. After appreciating the facts and evidence as well as applying the principles of law laid in the above decisions, I am of the view that the rejection of refund claims cannot be justified. The impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is not appropriate to my opinion because the fact still remains is that the requisite duty stands paid in full by the appellant which entitles the appellant to have credit thereof though in the form of cash in terms of the provisions of the new Act. Hence, I hold that the view formed by Commissioner (Appeals) while rejecting the refund is not appropriate. Rather it is beyond the intention of the Legislature. [Emphasis supplied] 14. In all these case laws, the issue was identical i.e., as to whether CVD+SAD as part of Custom Duties paid subsequent to 01.07.2017 on account of non-fulfilment of Export Obligation, are eligible for cash refund when the Appellant cannot take these amounts as Cenvat Credit. The co-ordinate Benches of Tribunal have been consistently holding that the Appellant would be eligible for Cenvat Credit. The issue in the present appeal is squarely is covered by these decisions. 15. In the case of OSI Systems Pvt Ltd vs CCT, Rangareddy [2022 (9) TMI 801 CESTAT Hyderabad], this Bench while dealing the issue as to whether the Service Tax paid on RCM basis subsequent to 01.07.2017, which otherwise is eligible as Cenvat Credit, can be taken as cash ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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