9911796707
TMI Blog2024 (7) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... 023 passed by the Commissioner (Appeals) against grant of interest on refund, but at the time of argument, Ld. DR submits that in the Department's appeal if the interest amount which is claimed by the respondent is to be calculated than the amount of interest would be more than Rs. 50 lakhs and therefore, the appeal should be decided by the Division Bench. The Ld. Counsel for the respondent in the Department's appeal submits that since the amount of interest in the Department's appeal has not been quantified and therefore the Single Member Bench can hear and decide the issue. 1.3 After considering the submissions of both the parties in departmental appeal, I am of the view that as the amount of interest on the refund granted by the Commissioner would be more than 50 lakhs, therefore, the Department's appeal is segregated from the parties' appeals and let the Department's appeal be listed before the Division Bench in due course. 1.4 Presently, two appeals filed by the M/s SBI Cards And Payment Services Limited and M/s SBI Business Process Management Service Pvt Ltd are taken up for disposal. 2. Briefly the facts of the present case are that the appellants are a subsidiary of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and scrutiny of refund. 19.02.2019 Deputy Commissioner issued SCN demanding an explanation of the eligibility of refund of the Cenvat Credit vis a vis carry forward in GST Tran-1 as per applicable GST provisions. 05.03.2020 Adjudicating authority by the OIO issued the refund Cenvat credit of Service tax, however, refund of the KKC was denied. 29.03.2022 The Assessee-Appellant preferred an appeal against the OIO(s) dt. 29.03.2022, for allowing the refund for KKC and granting interest on the refund of service tax granted. 24.05.2022 Ld. Commissioner (Appeals) allowed the interest on the refund of the service tax granted from three months from date of expiry of filing the original refund application. Further, Ld. Commissioner (Appeals) refused to issue refund of Cenvat of KKC and upheld the OIO to this extent. 11.01.2023 & 17.01.2023 The Assessee-Appellants have filed the appeal no. ST/60189/2023 and ST/60190/2023 against the Impugned orders which is prejudicial to the interest of the Assessee-Appellants. Department has preferred the appeal no. ST/60267/2023 against the OIA/Impugned order dated 11.01.2023. 3. Heard both the parties and perused material on record. 4.1 Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T AHMEDABAD * Hindustan Equipments Private Limited Versus Commissioner of CGST& Central Excise, Indore 2024 (6) TMI 245 - CESTAT NEW DELHI * Kobe Suspension Co Pvt Ltd Versus Commissioner Of Central Excise, Goods & Service Tax, Faridabad2024 (6) TMI 180 - CESTAT CHANDIGARH * Virgo Polymers India Pvt. Ltd. Versus Commissioner of GST and Central Excise Chennai 2023 (12) TMI 843 - CESTAT CHENNAI 4.3 She further submits that credit of KKC can only be utilized to set off the liability against KKC. The levy of KKC was abolished w.e.f. 01.07.2017. However, there was no provision to lapse the credit of KKC and the KKC credit was lying unutilised in the CENVAT account of the appellants. She further submits that it is settled law that accumulated credit is the indefensible and vested right of the assessee. She further submits that it is settled by various judicial forums that refund of the unutilized Cenvat credit on account of closure of manufacturing unit or when the assessee moves out of the modvat scheme shall be allowed. * Hindustan Zinc Ltd vs. Commissioner, Central Excise & CGST- UDAIPUR 2022 (2) TMI 246 - CESTAT New Delhi * ATC Tyres Pvt. Ltd. vs Commissioner of GST & Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Division Bench of this Tribunal in the case of M/s Lupin Ltd. Versus Commissioner of Central Tax & Cus. (Appeals), Guntur reported as 2023 (385) E.L.T. 242 (Tri.-Hyd.) has decided the issue of refund of Krishi Kalyan Cess accumulated prior to 01.07.2017 and has held that the assessee is not entitled to refund of non utilized portion of Cenvat Credit of KKC in cash. The Ld. DR further submits that the case laws relied upon by the appellant are distinguishable as not directly related to refund of KKC. 5.2 He further submits that the decisions of Bharat Heavy Electricals Ltd. (cited Supra) the Hon'ble High Court of Madhya Pradesh has stayed the execution of the said order; he further submits that the decision of Division Bench in the case of Lupin Ltd. (cited Supra) is binding on the Tribunal as it is directly on the point in issue as involved in the present case. 6. After considering the submissions of both the parties and perusal of the material on record, I find that the only issue involved in the present case is whether the appellants are entitled to get the refund of KKC under Section 142(9)(b) of CGST Act, 2017. The relevant section is reproduced here in below: "(9) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relates to rejection of refund claims. The appellant had claimed the following refunds which have been decided by the Court below: (A)(1) Krishi Kalyan Cess paid on services received for manufacture of goods, namely transportation of goods, Manpower supply-recruitment, maintenance and repair service, technical testing analysis service totalling Rs. 5,46,759/-. 8. Having considered the rival contentions, we reject the amount of refund for KKC RS 5.46,759/-, following the ruling of Larger Bench in the case of Gauri Plasticulture Pvt. Ltd [2019-TIOL-1248-HC-Mumbai-C.Ex-LB-2019 (30) G.ST.L. 224 (Bom)] wherein it was held that a non-utilised portion of Cenvat credit cannot be claimed as refund in cash, distinguishing the ruling in Union of India v. Slovok India Trading Company [2006 (201) E.L.T. 559 (Kar.) = 2008 (10) S.T.R. 101 (Kar.)], as not a declaration of law under Article 141 of the Constitution." 10. Since, the Division Bench of this Tribunal in case of refund of KKC has decided in favour of Revenue, therefore, by following the ratio of the said decisions I am of the considered view that the appellants are not entitled to the refund of the KKC and hence, I dismiss both th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
