TMI Blog2024 (2) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee who pay the Service Tax, Excise Duty in the form of CVD + SAD or IGST or Excise Duty subsequently after 01.07.2017, is to get the refund in terms of Section 142(3) of the CGST Act 2017. So far as the case law cited by the Learned AR in respect of M/S. AUROBINDO PHARMA LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI II [ 2022 (5) TMI 394 - CESTAT CHENNAI] and M/S. SERVO PACKAGING LIMITED VERSUS COMMISSIONER OF G.S.T. AND CENTRAL EXCISE, PUDUCHERRY [ 2020 (2) TMI 353 - CESTAT CHENNAI] , Chennai Bench is concerned, in both these cases the decisions were given prior to the Larger Bench taking its clear view on this issue. Since the Larger Bench had taken the view that the only recourse available to the appellant is to get the cash refund in terms of Section 142(3) to claim cash refund, these two case laws are not applicable presently. Appeal allowed. - MR. R. MURALIDHAR, MEMBER (JUDICIAL) Shri D V SubbaRao, Advocatefor the Appellant. Shri P Amaresh, Authorised Representative for the Respondent. ORDER The appellants are manufacturers of pharma products and they regularly export their goods to various countries. They also have several units within India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone amounts have been paid after 01.07.2017 between December 2017 to May 2018, in the present GST regime. On the ground that they do not have any provision to claim the Cenvat Credit of the the IGST paid during the present GST regime, they have preferred the refund in terms of Section 27 of the Customs Act 1962, seeking cash refund of such amounts. [Appeal No. C/30157/2020, C/30158/2020 and C/30208/2020] 2. All these refund claims were to seek cash refund which is permissible under Section 142(3) of the CGST Act, 2017. After due process, the Adjudicating Authorities rejected the refund claim on the following grounds: 14. Refund of Customs duty is governed by the provisions of Section 27 of the Customs Act, 1962. As per sub-section (1) of Section 27 of the Customs Act, 1962: (1) Any person claiming refund of any duty or interest, (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest In the subject case, as the claim is made on 13.12.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax law, Sales Tax / VAT laws etc., were rescinded and, in their place, certain common laws related to GST were introduced with effect from 01.07.2017. Therefore, for smooth transition from the existing laws to new laws related to GST, several transitional provisions were made available under CGST Act, 2017. Section 142(3) of CGST Act, 2017 is one such provision made for dealing with the refund claims made in respect of the taxes, interest or any amounts paid under the provisions of existing law . Therefore, the meaning of existing laws defined under Section 2(48) of CGST Act, 2017 shall be limited to those laws which were existing as on the appointed day i.e. 01.07.2017 and subsumed into the newly introduced GST law. There may be hundreds of laws existing in India as on 01.07.2017, including the many direct or indirect tax laws. Obviously, the meaning of existing law defined under Section 2(48) of CGST Act, 2017 cannot be extended to cover all the laws which were existing in India as on 01.07.2017. Hence, only those laws which were subsumed into GST laws, shall be treated as existing laws . Otherwise, the whole purpose of the transitional provisions will be vitiated. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l exports as required under subject Notification. The appellant had no other option but to pay the applicable customs duties including the IGST required to be paid under Section 3(7) of the Customs Tariff Act. Since the said duty paid was something which was required to be paid on the subject imports, there is no ground to claim any refund of the same under Section 27 of the Customs Act, 1962. The appellant s contention that since they have paid the IGST duty manually through TR- 6 challan and that since said challan is not a specified document under Rule 36 of the CGST Rules, 2017 to avail input tax credit and hence, they should be allowed refund of the duty paid, cannot be accepted as a valid ground. Payment of the IGST duty required under the Customs Act, 1962 and availment of Input Credit of such duty paid under the CGST Act, 2017 are two different aspects. The payment of IGST per se does not confer any right or entitlement to claim refund of such duty paid unless there are provisions which allow such refund . If manual TR-6 challan is not a specified document under Rule 36 of the CGST Rules 2017, that cannot be a ground to claim refund under Section 27 of the Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fulfilment of export obligation, the same cannot be claimed as refund under Section 142(3) of the CGST Act 2017. 11. He also submits that the Bosch LB decision cited by the appellant deals with a situation of refund of cenvat credit pertaining to Service Tax and Central Excise only, whereas in the present case, the refund is claimed for the Customs Duty. 12. Heard both sides, perused the appeal papers and written submissions and case laws cited by both sides. 13. After going through the facts, I find that there is no dispute on facts. Admittedly in some cases, the appellant has failed to fulfil the export obligations and consequently they had to pay the initial customs duty foregone. The initial customs duty foregone consisted of Basic Customs Duty + CVD + SAD. When on account of non-fulfilment of export obligations, they had to pay the customs duty after 01.07.2017, the provisions relating to CVD and SAD (Additional Duties of Customs) have been amended to make the payment by way of IGST. While CVD and SAD were eligible as Cenvat Credit in the earlier regime, even the IGST is eligible as Input Tax Credit in the present regime. The appellants were not in a position to claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to get the refund in terms of Section 142(3) of the CGST Act 2017. 16. On going through the case law cited by the Learned Advocate, I find that on the very same issue, the Tribunal have been consistently holding that the appellant should be eligible for cash refund. 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 pointed out 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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] In the case of ITCO Industries Ltd Vs CGST CE, Salem [2022 (6) TMI 1040 CESTAT Chennai] , the Chennai Bench has held as under: 11. From the narration of facts, it can be seen that Department has rejected the claims invoking Rule 9(1)(b)of Cenvat Credit Rules, 2004. The said provision has already been reproduced above. The Department is of the view that credit is not eligible as appellant has paid the duties only after issuing a demand notice. On pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. 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 orders are set aside. Appeals are allowed with consequential relief, if any, as per law. [Emphasis supplied] 17. I find that these case laws read with the LB decision in the case of Bosch Electricals would be squarely applicable to the present appeals. 18. So far as the case law cited by the Learned AR in respect of Aurobindo Pharma and Servo Packaging Ltd., Chennai Bench is concerned, in both these cases the decisions were given prior to the La ..... X X X X Extracts X X X X X X X X Extracts X X X X
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