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TMI Blog2024 (5) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... and Trans-1 due to technical reasons. The department has replied to the appellant vide impugned letter dated 18.12.2018 mentioning that "Please refer to your letter dated 06.12.2018 received in this office on 12.12.2018 on the above subject matter. I reproduce the relevant text of the appellant's letter dated 06.12.2018 submitted in the department as under: "In continuation of our letter dated 21.05.2018 and several personal meetings in respect of our refund claim of Rs. 4.75,973/- sanctioned vide 010 No. 144/Ref/AC/HPR/2017-18 dated 10.08.2017 with remark that refund amount take credit in Cenvat Account.' From the above, it is evident that the appellant had approached the department on 21.05.2018 not 20.09.2017 as claimed in their grounds of appeal. Accordingly. I find that the appellant approached to the department on 21.05.2018 after lapse of 9 months (approx.). 6. I find that the Assistant Commissioner. Central Goods & Service Tax. Division Hapur has rightly clarified vide their impugned letter dated. 18.12.2018 'that OIO No.144/Ref/AC/HPR/2-17-18 dated 10.08.2017 was already been passed by the competent authority on dated 10.08.2017 under which refund was san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 (259) E.L.T. 596 (Tri.-Del.)] * Oswal Castings Pvt. Ltd. V/s Commissioner of C.Ex. & S.T., Faridabad-I [2019 (24) G.S.T.L. 649 (Tri.-Chan.) * In view of the decisions as above the order of Commissioner (Appeals) rejecting their appeal on this ground cannot be justified. * In any case if such a view is upheld then the appellant will be rendered remedy less which could not be the intention of the provisions as per Section 35 of the Central Excise Act. * Even as per Section 142 (3) & 142(6) of CGST Act, 2017 order dated 10.08.2017 needs to be implemented by way of refunding the amount due to the appellant in cash. 3.3 Learned Authorized Representative reiterates the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions made in appeal memo and during the course of argument. 4.2 Admittedly by order dated 10.08.2017 the Assistant Commissioner has adjudicated upon the refund claim filed in his office on 20.06.2017 in pursuance of this Tribunal's Final Order No. A/70014/2016-SM dated 06.01.2016. While adjudicating he has held as follows:- ORDER "I, hereby, sanction the refund claim of Rs. 4,75,973/-(Rupees Four Lacs S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) every proceeding of appeal, review or reference relating to recovery of CENVAT credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of existing law and if any amount of credit becomes recoverable as a result of such appeal, review or reference, the same shall, unless recovered under the existing law, be recovered as an arrear of tax under this Act and the amount so recovered shall not be admissible as input tax credit under this Act." 4.5 Provisions of CGST Act, 2017 as noted above make it clear that any credit any amount which arises as credit admissible to the appellant should have been refunded in cash. 4.6 Thus Order-In-Original No.144/Ref./AC/HPR/2-17-18 dated 10.08.2017 when read along with above provision of CGST Act, 2017 could not have meant anything other than refunding this amount in cash to the appellant. 4.7 Appellant through various correspondences have requested for implementation of this order and finally the Assistant Commissioner instead of implementing the order dated 10.08.2017 has responded vide his letter dated 08.12.2018 in the manner as stated above in para 2.4. 4.8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances, it is found that the order communicated by the impugned letter is such as to affect the rights of the party, the appeal should be maintainable. We put a pointed question to the learned Departmental Representative that if the appeal is held to be not maintainable, what would be the remedy of the appellant. The law does not countenance a situation where the person is rendered remediless. In the circumstances of the case, the only option available to the appellant was to approach the Commissioner and the Commissioner was obliged to decide the matter on merit. The order of the Commissioner holding the appeal to be not maintainable cannot, therefore, be sustained. Accordingly, we set-aside the order of the Commissioner and remit the matter back to him to pass a fresh order on merit in accordance with law as early as possible preferably within two months of receipt of a copy of this order." C. Hindustan Rubber & General Indus., relevant para are as under:- "4. In the case of Bhagwati Gases (supra), the Appellant in respect of their letter seeking permission for removal of used capital goods in respect of which Cenvat credit had been taken, on payment of duty at depr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der and when request for modification in adjudication order has been entertained and rejected and the same has been appealed against, in that circumstance, it is concluded that the appellant has challenged the adjudication order of refund claim. Therefore, I hold that the appeal filed before the Ld. Commissioner (Appeals) is maintainable. 6.2 Issue No. (B) - Whether the appeal filed by the appellant before the Ld. Commissioner (Appeals) is barred by limitation or not? I find that against the adjudication order, the appellant approached to the adjudicating authority for the modification of the same. Therefore, the time consumed by the adjudicating authority is required to be deducted from the time of filing the appeal before the Commissioner (Appeals). If same is deducted, then the appeal filed before the Commissioner (Appeals) is within time. Therefore, I hold that the appeal filed by the appellant before Ld. Commissioner (Appeals) is within time. 7. Now I deal with the merits of the case. 8. Admittedly, as per Section 142(3) of the Central Goods & Services Tax Act, 2017, all refund claims were required to be sanctioned in cash and the adjudication order is violating the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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