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TMI Blog2024 (1) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... , the same may be granted as cash refund under Sec.142(3) of CGST Act, 2017. After due process, the Lower Authorities dismissed the refund claim. Being aggrieved, the Appellant is before the Tribunal. 2. The issue, as to whether any Appeals on account of such rejection of refund claims which were being filed on account of eligible Cenvat Credit had reached the Larger Bench. The Larger Bench had to decide as to whether the jurisdiction for such Appeals lies before the CESTAT or before the Tribunal to be constituted under the CGST Act 2017.Vide their Interim Order No. 40021/2023 dated 21.12.2023, the Larger Bench, in the case of Bosch Electrical Drive India Pvt Ltd, has gone through the submissions from both sides and has come to the following conclusion: "41. Before examining whether an appeal would lie to the Tribunal against an order passed under section 142 of the CGST Act, it would be appropriate to examine whether an appeal would lie to the Appellate Tribunal constituted under the CGST Act. 42. Under section 112 of the CGST Act, an appeal would lie before the Appellate Tribunal constituted under the CGST Act against an order passed under section 107 or section 108 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against an order passed under section 142 of the CGST Act would lie to the Tribunal. 47. This view also gains support from the fact the legislative intent could not have been to deprive either an assessee or the Revenue from the right of an appeal since an appeal against an order passed under section 142 of the CGST Act would not lie to the Appellate Tribunal constituted under the CGST Act." [Emphasis supplied] 3. In view of this decision, I take up the Appeal for disposal. 4. Learned Advocate appearing on behalf of the Appellant submits that the issue is no more res integra. The very issue as to whether CVD+SAD paid subsequent to 2017 are eligible for cash refund under Sec.142(3) of the CGST Act 2017, has been decided in favour of the importer/Assessees in the following cases: a) Mithila Drugs Pvt Ltd vs CGST, Udaipur [2022 (3) TMI 58 - CESTAT New Delhi] b) Clariant Chemicals India Ltd vs CCE & ST, Raigad [2022 (10) TMI 796 - CESTAT Mumbai] c) ITCO Industries Ltd vs CGST & CE, Salem [2022 (6) TMI 1040 - CESTAT Chennai] d) Flexi Caps & Polymers Pvt Ltd vs CGST & CE, Indore [2021 (9) TMI 917 - CESTAT New Delhi] 5. He further submits that on the issue as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n are eligible cenvat credit amounts during pre-GST period and since they cannot take credit now, they are eligible for refund is not legally correct. 18.6. Here, the intent of Law is that if any Cenvat Credit amount pertaining to existing law is to be refunded by way of credit in cenvat credit account as per existing law, in terms of Section 142(3), the same is to be refunded in cash. Here, in this case, the amount is not cenvat credit under existing law but the duties paid equivalent to duty foregone due to non fulfilment of export obligation. 9. The Learned AR submits that the refund claim has not been verified with reference to the Unjust Enrichment clause under Section 11B(2). He submits that even this issue has to be considered for the refund claim being made under Section 142(3) of CGST read with 11B(2) of the CEA 1944. 10. The Learned Advocate submits that in this case, the entire amount of differential customs duty (basic customs duty + CVD + SAD) has been paid by the appellant after about nine years after the initial date of imports. It has been held in plethora of case law that in such cases the provisions of Section 11B(2) would not be applicable at all, since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Ltd vs CCE & ST, Raigad [2022 (10) TMI 796 - CESTAT Mumbai], the Mumbai Bench has held as under: 8. Upon hearing the Counsels from both sides and after perusal of the case record, it is apparent that Appellant's eligibility to take credit of the duties paid as CENVAT Credit is undisputable and only because of procedural aberration occurred during transition to GST period, Appellant could not take the credits in its electronic ledger in the GST regime, for which it sought for refund such a contingency is perhaps foreseen by the legislature for which contingent provision is well enumerated in Clause 6(a) of Section142 of the CGST Act that deals with claim for CENVAT Credit after the appointed date under the existing law. It reads:- "6(a) every proceeding of appeal, review or reference relating to a claim for CENVAT credit initiated weather before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of existing law, and any amount of credit found to be admissible to the claimant shall be refunded to him in cash, notwithstanding anything to the contrary contained under the provisions of exiting law other than the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. The Tribunal in thecase of Circor Flow Technologies (supra) and Mithila Drugs Pvt. Ltd. (supra) had analysed a similar issue. InM/s.Mithila Drugs Pvt. Ltd., the facts are identical to that of the instant case. The relevant paragraphs read asunder: "5.1 Learned Counsel further relies on the precedent ruling of this Tribunal inFlexi Caps andPolymers Pvt. Ltd., vs. Commissioner, CGST & Central Excise, Indore -2021 (9) TMI 917-CESTAT, New Delhi,wherein also pursuant to demand of service tax under reverse chargemechanism after 30.06.2017, for transaction related prior to the said date (01.07.17), this Tribunal heldthat as the appellant was entitled to cenvat credit under Cenvat Credit Rules, which is not now availabledue to GST regime, is entitled to refund under Section 142 read with Rule 146 of the CGST Act. 6. Learned Authorised Representative Sh. Mahesh Bhardwaj appearing for the Revenue relies on theimpugned order. 7. Having considered the rival contentions, I find that the payment of CVD and SAD subsequentlyduring GST regime, for the imports made prior to 30.06.2017 is not disputed under the advanceauthorisation scheme. It is also not disputed that the appellant hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11B of the Central Excise Act, 1944:" and sub-section (8) (a) and (b) reads as follows:- "(8) (a)where in pursuance of an assessment or adjudication proceedings instituted, whether before,on or after the appointed day, under the existing law, any amount of tax, interest, fine or penaltybecomes recoverable from the person, the same shall, unless recovered under the existing law, berecovered as an arrear of tax under this Act and the amount so covered shall not be admissible as inputtax credit under this Act; (b)where in pursuance of an assessment or adjudication proceedings instituted, whether before, on orafter the appointed day, under the existing law, any amount of tax, interest, fine or penalty becomes refundable to the taxable person, the same shall be refunded to him in cash under the said law,notwithstanding anything to the contrary contained in the said law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 and the amount rejected, if any, shall not beadmissible as input tax credit under this Act." In view of these provisions, denying the said entitlement, that too, on the ground that the letter of DGFT cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bench in the cases of Servo Packaging Ltd.,& Aurobindo Pharma Ltd., were prior to the clear view brought in by the Larger Bench in the case of Bosch Electrical Drive India Pvt Ltd., (cited supra),which 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."[Emphasis supplied] 21. Therefore, I find all the case laws cited by learned AR cannot be applied now. On the other hand, the decisions of Mithila Drugs Pvt Ltd., (supra), Clariant Chemicals India Ltd., (supra) and ITCO Industries Ltd., (supra) cited by Learned Counsel read with Bosch Electrical Drive India Pvt Ltd., (Larger Bench)are squarely applicable. 22. On the point raised by the Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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