TMI Blog2024 (3) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... the application for amendment of plaint or written statement. In the case of MILES INDIA LIMITED VERSUS ASSISTANT COLLECTOR OF CUSTOMS [ 1984 (4) TMI 63 - SC ORDER] Hon ble Supreme Court has held If really the payment of the duty was under a mistake of law, the appellant may seek recourse to such alternative remedy as it may be advised. There are no infirmity in the impugned order - appeal dismissed. - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri M.B. Mathur, Advocate for the Appellant Shri Manish Raj, Authorised Representative for the Respondent ORDER This appeal is directed against order in appeal No MRT/EXCUS/000/APPL-MRT/ 262/2019-20 dated 13.12.2019 of Commissioner (Appeal) Central Goods and Service Tax Meerut. By the impugned order Commissioner (Appeal) has upheld order-in-original No. 66/DC/CEX/MBD dated 04.12.2018 holding as follows: ORDER I, hereby, reject the refund claim of Rs 653724/- (Six Lacs Fifty Three Thousand Seven Hundred and Twenty Four Only) of M/s Swati Menthol Allied Chemicals Itd. (Unit -I) Bareilly Road, Rampur. 2.1 Appellant is engaged in manufacture of Menthol and allied products classifiable under Chapter 29 and 33 of CETA, 1985. They procure rwa mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. 3.2 Arguing for the appellant learned counsel submits that: The issue involved was payment of Service Tax on Ocean Freight as imposed vide notification 03/2017-ST dated 13.04.2017. Though the amount was originally claimed as Cenvat was not admissible, however the levy itself was held Ultra Vires by Hon'ble High Court of Gujrat in case of Mohit Minerals (P) Ltd Vs Union of India 2020-TIOL-164-HC-AHM-GST, therefore the refund was admissible even otherwise. The appeal filed by the revenue challenging the Gujrat High Court order was dismissed by Hon'ble Supreme Court of India in case of Union of India Vs Mohit Mineral (P) Ltd 2022-TIOL-49-GST-SC-LB. Revenue has decided not to file any review in the matter. In the present cause, thus, the since the tax was paid which was not payable being held as ultra vires, refund becomes payable as department has no power to retain the same. Since the amount was paid in 2018 after introduction of GST and was paid in lumpsum and never charged from the buyer, unjust enrichment is also not applicable in the case as has been held in case of Gokul Agro Resources Ltd [2020-TIOL-691-HC-AHM-GST]. The SCN was issued on dispute on admissibility of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat credit. I find that the appellant has sought the refund of the service tax paid by him as he was not in a position to take the Cenvat Credit of the same as he had not paid the said tax in time and, therefore, he could not include the same in his Tran-1 while migrating his credit balance to the credit ledger under the provisions of the CGST Act. I further find that the procedure of migration of Cenvat credit in ITC under GST regime was laid down in Section 140 of the CGST Act read with Rule 117(1) and 117(2)(a) of the Central GST Rules, 2017 which stipulated that A registered person other than a person opting to pay tax under Section 10, shall be entitled to take, in his electronic credit ledger, the amount of CENVAT credit of eligible duties carried forwarded in the return relating to the period ending with the day immediately preceding the appointed day, furnished by him under the existing law in such manner as may be prescribed In light of the above facts, I find that the provisions of this section allowed to carry forward eligible Cenvat Credit mentioned in the Return of June,2017, in GST regime through Tran-1. Further, the claimed loss of credit of duty does not make the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India where service tax is paid by the manufacturer or the provider of output service being importer of goods as the person liable for paying service tax for the said taxable services, credit of service tax paid by the person liable for paying service tax shall be allowed after such service tax is paid 9. I find that Para 2(1) of the said Notification No.10/2017-CE (NT) dated13.04.2017 includes the services services provided or agreed to be provided by a person located in non-taxable territory to a person located in non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India where service tax is paid by the manufacturer or the provider of output service being importer of goods as the person liable for paying service tax for the said taxable services and the said imported goods are his inputs or capital goods in the definition of input service 10. I also find that as per Para 2(2) of the said Notification No.10/2017-CE (NT) dated13.04.2017 ... in respect of services provided or agreed to be provided by a person located in non-taxable territory to a person located in non-taxable territory by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Meerut vide his office letter No. V(1)Audit/Pre-audit/291/18/8802 dated 17.10.2018 submitted that the refund claim does not appear to be admissible making observations, inter-alia, as under:- (i) That on the instance of the audit, the amount of Service Tax payable of transportation of importer goods under RCM for the period January'2017 to May'2017 not paid earlier amounting to Rs.6,53,724/-was paid with interest Rs.84,477/-and penalty Rs.98,059/- on 11.01.2018. (ii) The Rule 9(b) of Cenvat credit Rules, 2004 provides that the credit is not available in those cases where the additional amount of tax becomes recoverable from the provider of service tax on account of non-levy or nonpayment. Thus the party was not entitled for cenvat Credit in this case under the existing rules and have no refund arises at all. 14. However it was observed that as per Rule 9(1)(b) of Cenvat Credit Rules,2004 the CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of a supplementary invoice, issued by a manufacture or importer of inputs or capital goods in them of provision of Central Excise Rules,2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CCR, 2004 is ample clear that the credit is not available in those cases where the additional amount of tax becomes recoverable from the Service Tax provider on account of non-levy or non-payment. Thus the party was not entitled for Cenvat Credit in terms of Rules 9(1)(b) of the CCR, 2004 read with Section 11B(3) of the Central Excise ACT, 1944. 16. In light of the above discussion I conclude that the party were importing inputs intended for use in manufacture of finished goods, thereby they were supposed to pay service tax under RCM on service of transportation of goods, provided by foreign shipping line, in terms of Notification No.3/2017-ST dated 12.01.2017 read with Board's Circular No.206/4/2017-service Tax dated 13.04.2017 issued under F No. 354/42/2016- TPU. As such, they are required to pay service tax. Rule -9(1)(b) of the CCR, 2004 is ample clear that the credit is not available in those cases where the additional amount of tax becomes recoverable from the Service Tax provider on account of non- levy or non-payment. Thus the party was not entitled for Cenvat Credit in terms of Rules 9(1)(b) of the CCR, 2004 read with Section 11B(3) of the Central Excise ACT, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 24.7.2018, issued by the adjudicating authority proposing to reject the refund application of the petitioner of CENVAT Credit of Rs. 10,88,328/-. d. For a relief of refund of CENVAT Credit of the aforesaid amount of input service credit in terms of transitional provision under Section 142(3) of Central Goods and Service Tax Act, 2017 read with Section 11-B of Central Excise Act, 1944 and Rule 2(l) and Rule 3 of the CENVAT Credit Rules, 2004. 4. The following are the foundational facts for filing of the present writ petition:- Date Events period 26.04.2017 to 29.04.2017 The petitioner was registered under Central Excise Act, 1944 for manufacture of excisable goods in which the inputs Iron Ore, Coal, Dolomite etc. are used. The petitioner used to procure input i.e. coal, domestically as well as from outside the territory of India and for importing coal, the petitioner availed input services such as 'Port Services'. period 26.04.2017 to 29.04.2017 At the relevant point of time, the petitioner was also registered under Chapter V of the Finance Act, 1994 as a person liable to pay tax on receipt of taxable services under reverse charge mechanism as a recipient of Goods Transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 30.06.2017 for which duty paying documents/bills were already received by the petitioner except credit of aforesaid amount of Rs. 10,88,328/- as the bill dated 23.05.2017 in original was not yet received by the petitioner. 20.09.2017 The 'original' of the bill dated 23.05.2017 was delivered to the petitioner only on 20.09.2017 and it is the specific case of the petitioner that such delay was beyond their control. 22.09.2017 On 22.09.2017 the petitioner filed their ST-3 return for the period April, 2017 to June, 2017 under Chapter V of the Finance Act, 1994 taking all service invoices where they were liable to pay service tax under reverse charge basis. Further it is the case of the petitioner that in the said ST-3 return the petitioner disclosed the said Input Service Credit on port services amounting to Rs. 10,88,328/- with a view to keep the said transaction above the board so that their claim is not lost. 31.10.2017 The time for filing TRAN-1 for claiming transitional credit was extended till 31.10.2017 vide notification issued by Central Board of Direct Taxes and Customs. However, the petitioner did not claim the aforesaid service tax paid on port services in TRAN-1 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adras High Court which held that refund is statutory right and the extension of the benefit of refund only to the unutilised credit that accumulates on account of rate of tax on input goods being higher than the rate of tax on output supplies, by excluding unutilised input tax credit that accumulated on account of input services, is a valid classification and a valid exercise of legislative power. The Hon'ble Supreme Court accepted the submission of Mr. N. Venkataraman, learned ASG on the legal proposition on the point of refund. The submissions of Mr. N. Venkataraman, learned ASG on the point of legal proposition have been recorded in para-D.1.3 Part (III), as under: - (i) Article 265 of the Constitution provides that no tax shall be levied or collected except by authority of law. There being no challenge either to the levy or collection of taxes in these cases, taxes paid into the coffers of the Union Government or the States become the property of the Union/States; (ii) The refund of taxes is neither a fundamental right nor a constitutional right. The Constitution only guarantees that the levy should be legal and that the collection should be in accordance with law. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative amendment which reflects a policy choice is not subject to judicial review. 8. The Hon'ble Supreme Court crystalised and laid down the law in connection with refund under Taxation and some of the paragraphs of the judgement are quoted as under: 87. We must be cognizant of the fact that no constitutional right is being asserted to claim a refund, as there cannot be. Refund is a matter of a statutory prescription. Parliament was within its legislative authority in determining whether refunds should be allowed of unutilised ITC tracing its origin both to input goods and input services or, as it has legislated, input goods alone. By its clear stipulation that a refund would be admissible only where the unutilised ITC has accumulated on account of the rate of tax on inputs being higher than the rate of tax on output supplies, Parliament has confined the refund in the manner which we have described above. While recognising an entitlement to refund, it is open to the legislature to define the circumstances in which a refund can be claimed. The proviso to Section 54(3) is not a condition of eligibility (as the assessees' Counsel submitted) but a restriction which must govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiderations which underlie these choices are based on complex balances drawn between political, economic and social needs and aspirations and are a result of careful analysis of the data and information regarding the levy of taxes and their collection. That is precisely the reason why courts are averse to entering the area of policy matters on fiscal issues. We are therefore unable to accept the challenge to the constitutional validity of Section 54(3). 9. Though in the instant case we are not dealing with section 54 of CGST Act but are concerned with transitional provisions dealing with refund under section 142(3) of the CGST Act in cash under certain circumstances in connection with taxes suffered under the previous regime. However, the fundamental concepts and the interpretation of law relating to refund would still be the same and what is to be seen is whether the petitioner qualifies for entitlement of refund under section 142(3) of CGST Act in the light of the facts and circumstances of this case. Legal proposition on the point of interpretation of transitional provisions, vested rights etc with reference to the judgements relied upon by the learned counsel of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is necessary to read Section 23(1- A) along with the transitional provisions contained in sub-section (1) of Section 30 of the amending Act. 12. There is no doubt about the aforesaid proposition that the transitional provisions are made to make special provision for the application of legislation to the circumstances which exist at the time when the legislation comes into force and are applicable to proceedings that were pending on the date of the commencement of the amending Act. 13. So far as the judgment in the case of J. K. Cotton Spinning and Weaving Mills Co. Ltd. (supra) is concerned, the petitioner has referred to paragraphs-10 of the said judgment, which is quoted as under: - 10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the specific provision, we must hold that Cl. 5(a) has no application in a case where the special provisions of Cl. 23 are applicable. The aforesaid judgment does not help the petitioner in any manner in view of the fact that there is no conflict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (repeal and saving) read with Section 6 of General Clause Act. 16. The learned counsel has themselves relied upon a judgment passed by the Hon'ble Supreme Court in the case of State of Punjab and Ors. vs Bhajan Kaur and Ors. (supra), wherein Section 6 of General Clauses Act has been interpreted by holding that the said provision inter-alia saves a right accrued, but it does not create a right. Paragraph-14 of the aforesaid judgment is quoted hereinbelow for ready reference: - 14. ................. Section 6 of the General Clauses Act, therefore, inter alia, saves a right accrued and/or a liability incurred. It does not create a right. When Section 6 applies, only an existing right is saved thereby. The existing right of a party has to be determined on the basis of the statute which was applicable and not under the new one. If a new Act confers a right, it does so with prospective effect when it comes into force, unless expressly stated otherwise. 17. In the case of Glaxo Smith Kline PLC and Others (supra), the Hon'ble Supreme Court has upheld the view of the learned single judge of the High Court and held at Para-17 as under: - 17. The learned Single Judge's view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessarily it follows that the right, which had accrued to a party such as the availability of a scheme, is affected and, in particular, it loses sight of the fact that the provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assessees concerned. Therefore, the Scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier Scheme was applied under which the assessees had availed of the credit facility for payment of taxes. It is on the basis of the earlier Scheme necessarily that the taxes have to be adjusted and payment made complete. Any manner or mode of application of the said Rule would result in affecting the rights of the assessees. 6. We may look at the matter from another angle. If on the inputs, the assessee had already paid the taxes on the basis that when the goods are utilised in the manufacture of further products as inputs thereto then the tax on these goods gets adjusted which are finished subsequently. Thus, a right accrued to the assessee on the date when they paid the tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be given by the petitioner is contrary to the very object and purpose of section 142(3) of CGST Act which has been discussed at a later part of the Judgement. 22. So far as the judgment passed in the case of M/s. DMR Constructions (supra) by Hon'ble Madras High Court is concerned, the same related to transition of accumulated tax deducted at source which existed on the date of coming into force of CGST Act and relief was granted to the petitioner in terms of transitional credit under section 140(1) of CGST Act. 23. However, in the instant case, the petitioner failed to claim transitional credit in terms of section 140(1) of the CGST, Act and wrongly took credit of the impugned service tax in ST-3 return and thereafter claimed refund of the same by referring to section 142(3) of CGST, Act. Accordingly, the said judgement does not apply to the facts and circumstances of this case. The sequence of facts; case of the parties and the contents of the impugned orders 24. The petitioner was having Central Excise Registration for manufacture of sponge iron, billet and TMT Bar. The petitioner was also registered under Service tax only as a person liable to pay service tax under Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to avail of transitional credit of the service tax paid on port services through the mechanism prescribed under the CGST Act (Section 140) read with the existing provisions of CENVAT Credit Rules, 2002. It is also important to note that the existing provision did not permit CENVAT Credit of service tax paid on port services without its inclusion in ER-1 Return and in absence of such inclusion within the prescribed time line the claim of credit stood completely lost and could not be claimed in TRAN - 1 as transitional credit under CGST Act. Admittedly, the petitioner was not entitled to claim the service tax paid on port services in their service tax return ST-3 as the petitioner was not an output service provider and was liable to file service tax return and pay service tax only under reverse charge mechanism. Admittedly, port services were not under reverse charge mechanism. 29. Further, Rule 5 of CENVAT Credit Rules, 2004 permits refund only when the services are used to export goods or services, which is not the case in the present case. It is not the case of the petitioner that the impugned services were used for export of goods or services. Thus, under the existing law the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ST-3 return filed under Service Tax. The petitioner tried to justify and explain their act as under: - (i) The reason behind disclosure of CENVAT Credit claimed on input services in the ST-3 return was not for showing use of the said services for providing output services but there was no scope for them to disclose the same in ER-1 returns which was already filed before receipt of the duty paying document. The substantive benefit of CENVAT Credit should not be denied for technical breaches and that the legislation for granting input tax credit is beneficial piece of legislation and should be construed liberally; (ii) The said services are used for procurement of inputs are amply covered in the definition of input service in terms of Rule 2(l) of CCR, 2004 and disclosure or non-disclosure of said credit in ST-3 and/or ER-1 are irrelevant. (iii) Ultimate eligibility of the credit of the impugned services is not in dispute and the benefit of CENVAT Credit eventually accrues to them which is the heart and soul of Section 142(3) of the CGST Act, 2017 and under Section 142(3) there is no statutory precondition that in order to claim the transitional credit, the claim must be disclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 11B of the Central Excise Act, 1944 made applicable to Service Tax vide Section 83 of the Finance act, 1994. 37. Aggrieved with the aforesaid Order in original the petitioner filed appeal reiterating the submissions made before the Adjudicating Authority. They made following main submissions before the appellate authority: i. The services were received by them during 26.04.2017 to 29.04.2017 and payment, including service tax, was made in April, 2017. But they received the invoice on 20.09.2017 and they made provisional entry in their books of account. They could not take credit in their last ER-1 return for June, 2017 which they filed on 30.07.2017 for the reason beyond their control. They could not have filed any return thereafter when Central Excise Act, 1944 and the rules made thereunder was repealed; ii. They could not avail the benefit of Section 140(5) of the CGST Act, 2017 for the same reason that the original copy of the invoice was received in September, 2017. They were left with no option than to file refund Application vide their letter dated 29.06.2018 under residuary provision of Section 142(3) read with Section 174(2)(c) of the CGST Act and Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xported, then, the CENVAT Credit in respect of the input or input service so used, shall be allowed to be utilised by the manufacturer or provider of output service towards payment of duty of excise on any final product cleared for home consumption or for export , on payment of duty or service tax on output service. When for any reason, such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitation as may be specified by the Central Government by a notification. f. The appellate authority referred to a judgement passed by the North Zonal Bench of the CESTAT in the case of Purvi Fabrics Texturise (P) Ltd. vs Commissioner of Central Excise, Jaipur-II - 2004 (172) E.L.T. 321 (Tri.- Del.) = 2004-TIOL-615-CESTAT-DEL, wherein it was held that there is no legal provision existing for refund either by cash or cheque. The only exception carved out is that the refund in cash is granted as an incentive measure to the exporter. The provisions and particularly Section 11B of the Central Excise Act provides for payment of amount of refund to the applicant only in situations specified in proviso to sub-section (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export. Therefore, in the scheme of the rules, what is sought by the petitioner is not permissible. Thus, the attempt by the petitioner to claim refund of CENVAT Credit was held to be not allowable and the appeal was rejected. Interpretation of section 142(3) read with section 140(1), 140(5) and section 174 of CGST Act vis-a vis the facts of this case. 39. The relevant portions of the aforesaid sections as relied upon by the learned counsel for the petitioner during the course of arguments are as under. Section 140 (1) and (5) of the CGST, Act reads as under:- 140. (1) A registered person, other than a person opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, the amount of CENVAT Credit of eligible duties carried forward in the return relating to the period ending with the day immediately preceding the appointed day, furnished by him under the existing law within such time and in such manner as may be prescribed: PROVIDED that the registered person shall not be allowed to take credit in the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d saving (1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (1 of 1944) (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), and the Central Excise Tariff Act, 1985 (5 of 1986) (hereafter referred to as the repealed Acts) are hereby repealed. (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (32 of 1994) (hereafter referred to as such amendment or amended Act , as the case may be) to the extent mentioned in the sub-section (1) or section 173 shall not- (a) revive anything not in force or existing at the time of such amendment or repeal; or (b) affect the previous operation of the amended Act or repealed Acts and orders or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther amount paid under the existing law. c. Such application filed before, on or after the appointed day is to be disposed of in accordance with the provisions of existing law. d. If any amount eventually accrues the same is to be refunded in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11-B of the Central Excise Act, 1944. e. It also provides that where any claim for refund of CENVAT Credit is fully or even partially rejected, the amount so rejected shall lapse. f. The second proviso provides 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 the CGST Act. 41. Thus, section 142(3) of CGST, Act clearly provides that refund application with respect of any amount relating to CENVAT Credit, duty, tax, interest or any other amount paid under the existing law is to be disposed of in accordance with the provisions of existing law and if any such amount accrues the same shall be paid in cash. Such right to refund in cash has been conferred notwithstanding anything to the contrary con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of courts and tribunals. On the appointed date there could be claims of refund of any amount of CENVAT Credit, duty, tax, interest or any other amount paid under the existing law in connection with which the applications for refunds were pending or time limit for claiming refund was yet to expire or may crystalize on account of any judgement of courts or tribunals in relation to pending litigations. These are some of the situations which would be covered by the miscellaneous transitional provisions as contained in section 142(3) of CGST, Act which would continue to be governed by section 11B(2) of Central Excise Act, 1944. 45. The provision of section 142(3) does not entitle a person to seek refund who has no such right under the existing law or where the right under the existing law has extinguished or where right under the new CGST regime with respect to such claim has not been exercised in terms of the provision of CGST, Act and the rules framed and notifications issued. Meaning thereby, section 142(3) does not confer a new right which never existed under the old regime except to the manner of giving relief by refund in cash if the person is found entitled under the existing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly not entitled as they were assessee under service tax only on reverse charge mechanism and admittedly the port services availed by the petitioner was not covered under reverse charge mechanism. Thus, the petitioner on the one hand illegally took credit of service tax on port services as credit in their ST-3 return and on the other hand filed application for refund of the same amount under section 142(3) of the CGST, Act which is certainly not permissible in law. The authorities have rightly considered these aspects of the matter also while rejecting the application for refund filed by the petitioner. 50. It is not in dispute that the petitioner has claimed the credit of service tax involved in the present case paid on port services as input service in ST-3 return filed on 22.09.2017, though they were not entitled to claim such a credit. It is further not in dispute that the petitioner did not include the impugned service tax paid on port services in its ER-1 return and accordingly was neither entitled to include nor included the same as transitional credit in TRAN-1 under CGST Act. As per the notification (Annexure-5) extending the date of filing TRAN-1 to 31.10.2017, the same wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner and its service provider of the port services and the respondent authorities had no role to play. The petitioner had failed to avail the opportunity to claim CENVAT Credit of service tax on port services in terms of the existing law read with section 140 of CGST, Act and had no existing right of refund on the date of coming into force of CGST, Act. The petitioner having not used the port services for export was not entitled to claim refund under the existing law. The petitioner was also not entitled to refund on account of the fact that the petitioner had already taken credit of the service tax paid on port services in ST-3 Return of service tax although admittedly the petitioner was not entitled to take such credit in ST-3 Return. On account of aforesaid three distinct reasons the petitioner was rightly held to be not entitled to refund under section 142(3) of CGST, Act by the impugned orders. 53. All the aforesaid provisions referred to and relied upon by the learned counsel of the petitioner do not entitle a person like the petitioner to any relief in the circumstances of acts and omissions of the service provider (port authority) or the service recipient (the petitioner) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned amount as credit in Service Tax Return (S.T. 3 return). 4.8 From the above referred decision of Hon ble high Court of Jharkhand, which has been rendered in identical situation it is evident that the refund claim filed by the appellant is not maintainable, and the impugned which rejects the refund claim cannot be faulted with. 4.9 Appellant has further submitted that the issue of levy of service tax on ocean freight was decided by the Hon ble Gujarat High Court in the case of Mohit Minerals (P) Ltd [2020-TIOL-164-HC-AHM-GST]. Hon ble Gujarat High Court in the said order has held that levy itself was ultra vires. This decision has been upheld by the Hon ble Supreme Court as reported at 2022-TIOL-49-GST-SC-LB. As the levy itself has been held to be ultra-vires the refund should be allowed to them. I am not in position to agree with the contentions raised by the appellant for simple reason that considering this ground would amount to consideration of entirely a new refund claim, which was never made before the original authority. Appellant if wish to claim the refund on this ground should file the appropriate refund claim with the original authorities on this ground provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any decision in his case and the assessment/ payment of duty by the appellant thus became final. In case of ITC Ltd. [2019-TIOL-418-SC-CUS-LB] Hon ble Supreme Court has held as follows: 39. In Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. 2000 (120) ELT 285 (SC)= (2000) 6 SCC 650 = 2002-TIOL-208-SC-CX, the question which came up for consideration before this Court was non-challenge of an appealable order where the adjudicating authority had passed an order which is appealable under the statute, and the party aggrieved did not choose to file an appeal. This Court held that it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. The provisions of the Central Excise Act, 1944 came up for consideration. The Court has observed: 10. Coming to the question that is raised, there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . So long as the order of assessment stands the duty would be payable as per that order of assessment. A refund claim is not an appeal proceeding. The officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The officer considering the refund claim cannot also review an assessment order. 7. We also see no substance in the contention that provision for a period of limitation indicates that a refund claim could be filed without filing an appeal. Even under Section 11 under the Excise Act, the claim for refund had to be filed within a period of six months. It was still held, in Flock (India)'s case (supra), that in the absence of an appeal having been filed no refund claim could be made. 8. The words in pursuance of an order of assessment only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an order of assessment to claim the refund. These words do not lead to the conclusion that without the order of assessment having been modified in appeal or reviewed a claim for refund can be maintained. (emphasis supplied) 41. It is apparent from provisions of refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defense taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. The proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the application for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. (See South Konkan Distilleries Anr. v. Prabhakar Gajanan Naik Ors., (2008) 14 SCC 632). 4.11 In the case of Miles India Limited [2002-TIOL-501-SC-CUS] Hon ble Supreme Court has held as follows: Af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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