TMI Blog2024 (5) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case, the refund was made under the existing law i.e. section 11B of Central Excise Act, 1944 accordingly, the refund of SAD/CVD paid by the appellant which was cenvatable at the time when the said duty was payable, It is clearly eligible for refund under Section 11B read with Section 142(3) of CGST Act, 2017. Therefore, the appellant are legally entitled for the refund of CVD/ SAD. The Revenue has filed the appeal on the sole ground that the adjudicating authority has rejected the claim relying on the Single Member Bench decision in the case of this Tribunal decision in the case of Sarvo Packaging Ltd. There are number of judgments by this Tribunal itself which are contrary to the decision of M/S. SERVO PACKAGING LIMITED VER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty with interest on imported goods. The amount of CVD and SAD total Rs. 1,16,02,346/- paid by the appellant was admissible to them as a Cenvat credit under erstwhile Cenvat Credit Rules, 2004 however from 01.07.2017, GST regime came into effect and the Cenvat Credit Rules, 2004 seized to exist and hence they were not in a position to avail the Cenvat credit of such duties paid by them and therefore, they have filed a refund claim under Section 11B of the Central Excise Act, 1944 on the grounds that they are not able to avail and utilize the credit of CVD/SAD paid by them as payment was made on 30.09.2020 when no provision exist in GST regime to avail such credit. A show cause notice dated 27.05.2021 was issued with reference to the said ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that all the decisions which were relied upon by the Learned Commissioner (Appeals) have been accepted by the department only on the low monetary ground, hence it cannot be said that all these cases have attained finality. He submits that as per the above grounds of appeal, the order of Commissioner (Appeals) is not legal and proper and the same need to be set aside and Revenue s appeal be allowed. 3. Shri Amal Dave, learned counsel appearing on behalf of the Respondent submits that the learned Commissioner (Appeals) on the very identical issue has relied upon various judgments wherein the refund in the identical nature of cases have been allowed. That merely because the learned Commissioner (Appeals) has not discussed about the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant have paid the CVD and SAD for the period prior to 01.07.2017 even though the payment was made subsequent to 01.07.2017. Therefore, since the duty is paid by the appellant are for the period when the Cenvat credit Rules was existing, the appellant were entitled for Cenvat credit during period prior to 01.07.2017. In CGST Act to deal with situation of the present case, special provision was made under Section 142(3) whereby when the assessee is not in a position to avail the Cenvat credit or utilize the same due to effect of GST regime from 01.07.2017 refund provision was enacted which specifically deals with the situation of refund of amount which is cenvatable as per existing law i.e. Central Excise Act, 1944 and Rules made thereunder. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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