TMI Blog2024 (1) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... en that this issue was not raised by the Department at any point of time while rejecting the refund claim. The Adjudicating Authority has rejected the claim purely on the ground that there was no provision under Section 142(3) of CGST Act 2017 to grant the cash refund. Therefore, when no appeal was filed by the Department against the OIO passed, the Revenue is precluded from raising such an issue purely to contest a squarely covered case. The impugned order set aside - appeal allowed. - Hon ble Mr. R. Muralidhar, Member (Judicial) For the Appellant : Shri Ashwani Pahwa, CA. For the Respondent : Shri A Rangadham, Authorised Representative. ORDER PER: R. MURALIDHAR The appellant has paid the Service Tax on Reverse Charge Mechanism (RCM) basis based on the audit objections raised for the transactions carried out prior to June 2017. They have made the Service Tax payments on Reverse Charge Basis in May 2019. In the normal course, they would have taken the Cenvat Credit. Since there is no provision under the present GST regime to take the Cenvat Credit, they have filed the refund claim under Section 142(3) of the CGST Act 2017. After due process, the Adjudicating Authority rejected th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 are reproduced hereunder for ready of reference: Section 142 (3): Every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944): Provided that where any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse: 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. From a careful reading of the relevant provisions of Section 142(3) cited above, it is clear that the claim for refund filed by a claimant shall be disposed of in accordance with the provisions of existing law and refund payment has to be made in cash only if any amount is eventually found to be refundab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal has relied on the case law of M/s Rungta Mines Ltd., decided by Hon ble High Court of Jharkhand [2022 (2) TMI 934 Jharkhand HC]. He submits that the Tribunal has held in this case that the assessee would not be in a position to seek the cash refund in terms of Section 142(3) and accordingly has dismissed their appeal. In view of the same, he submits that the present appeal is liable to be dismissed. 6. Heard both sides and perused the documents. 7. The facts are not in dispute and admittedly the issue pertains to the Service Tax paid by the appellant during the present GST regime for the Service Tax which should have been paid by them under RCM basis during the previous Central Excise/Service Tax regime. The appellants have filed the refund claim seeking to get such amounts paid as cash refunds in terms of Section 142(3) of the CGST Act 2017. The issue as to whether in such cases whether this Tribunal has a Jurisdiction to decide the case or not was before the Hon ble Larger Bench in the case of M/s Bosch Electrical Drive India Pvt Ltd. The Larger Bench vide their Interim Order No. 40021/2023 dated 21.12.2023 has held as under: 44. Under sub-section (3) of section 142 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal has a Jurisdiction to decide these issues. The Larger Bench in the same Order has also gone into the aspect as to how the refund can be claimed in such matter and has held as under: 49. In the present case, the service tax was paid under the provisions of Chapter V of the Finance Act and refund was claimed under sub-section (3) of section 142 of the CGST Act, under which the claim was required to be disposed of in accordance with the provisions of the existing law. Therefore, even if the service tax had been deposited by the appellant after 01.01.2017, nonetheless the refund of any amount of the CENVAT credit could be claimed only under subsection (3) of section 142 of the CGST Act and against this order an appeal will lie to the Tribunal. 9. From this finding of the Larger Bench it gets clarified that the only way to claim the refund is under Section 142(3) of CGST Act 2017. From the case laws cited by the Learned Consultant, it is seen that the Hyderabad and Chennai Benches have taken the similar view and have granted the refunds. Since the view of the Larger Bench has become clear after the Interim Order dated 21.12.2023, the earlier Order of the Mumbai Bench in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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