Sl.No,Period,"Refund applied for
(Rs)","Refund sanctioned
by DC","Amount in dispute and
subject matter of the
present appeals (Rs)
1,"Jan 2015 to March
2015","9,00,000/-","1,98,436/- (vide
OIO No 78/2016-
(R) dated 31-05-
2016","2,94,261/- (as per impugned
OIA No 141 to 147/2019
dated 13-05-2019
2,"Apr 2015 to June
2015","17,59,106/-","4,61,051/-vide OIO
No 133/2016-(R)
dared 30- 09-2016","12,98,055/-
3,"July 2015 to
September 2015","13,72,971/-","1,94,402/-","11,78,569/-
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. It is his further submission that in the present case request for cash refund of the amounts mentioned above has been rejected on the,,,,
ground that with effect from 1st March 2015 only value on account of physical exports is liable to be considered for the purpose of sanctioning cash,,,,
refund. The fact of the matter is that as the time of filing the refund claim the appellants had debited the entire amounts in their Cenvat account as,,,,
mandated under Notification No 27/2012-C.E. (N.T) dated 18-06-2012 and the said amount was debited under the bona fide belief that cash refund,,,,
would be sanctioned to them. He further submitted that the credit itself was never disallowed and the cenvat credit amount in dispute lying in the,,,,
balance as on31/06/2017 are liable to be refunded to the appellant in cash as per the provisions of sub-section 3 or sub-section 6(a) of Section 142 of,,,,
CGST Act. He further submitted that this Tribunal has consistently held that cenvat credit existing in the cenvat account as on the date of coming into,,,,
force of CGST shall be granted in cash. For this, he relied upon the following decisions:-",,,,
i. SMG International Versus Commissioner of Central Excise [2019 (21) G.S.T.L 446 (Tri-Chan)],,,,
ii. Oswal Castings Pvt. Ltd Versus Commissioner of C.Ex [2019 (24) G.S.T.L 649 (Tri-Chan]],,,,
iii. Rawalwasia Ispat Udyog Pvt. Ltd Versus Commr. Of C.Ex [2019 (26) G.S.T.L 196 (Tri-Chan)],,,,
iv. Toshiba Machine (Chennai) P. Ltd Versus Commr. Of Central Tax, [2019 (27) G.S.T.L 218 (Tri-Chennai)]",,,,
v. Great India Steel Fabricators Versus Commissioner of C.Ex & S.T [2019 (28) G.S.T.L 279 (Tri-Chan)],,,,
6. On the other hand the learned AR defended the impugned order and submitted that the Commissioner(Appeals) after considering the amendments,,,,
which came into effect by Notification No.6/2015- CE(NT) dt. 01/03/2015 amending the ‘export of goods’ and after considering the decisions,",,,,
has rightly held that the appellant is not entitled for cash refunds because they have not physically exported the goods to the extent of rejection of,,,,
refund.,,,,
7. After considering the submissions of both sides and perusal of the material on record, I find that in the present case, the appellant is a 100% EOU,",,,,
which has admittedly supplied the goods to another EOU and filed refund claims under Rule 5 read with Notification No.27/2012 dt. 18/06/2012.,,,,
Further I find that the goods were supplied by the appellant to another EOU after coming into force of the amendment in Rule 5. Further I find that,,,,
with the insertion of clause (1A) in Explanation 1 to Rule 5 came into force vide Notification No.6/2015-CE(NT) dt. 01/03/2015 whereby export goods,,,,
means any goods which are to be taken out of India to a place outside India, which means that there has to be a physical export and therefore deemed",,,,
exports are not entitled for cash refunds. Here it is pertinent to make a reference to relevant provision of Section 142 of the CGST Act, 2017 which is",,,,
reproduced herein below:-,,,,
(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 further 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.,,,,
…,,,,
…,,,,
(6)(a) every proceeding of appeal, review or reference relating to a claim for 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 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 existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 (1 of 1944) and the amount",,,,
rejected, if any, shall not be admissible as input tax credit under this Act :",,,,
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;,,,,
(b) 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.,,,,
8. Further I find that this Tribunal in the case of Wave Mechanics Pvt. Ltd. cited supra has held that cash refund is not admissible under rule 5 of,,,,
CENVAT Credit Rules read with Notification No.27/2012-CE dt. 18/06/2012 in respect of clearances made by one EOU to another EOU on IUT,,,,
basis. It was also held that the amounts in respect of cash refund has been claimed were debited in the cenvat credit account at the time of filing the,,,,
refund claim as required under the said Notification and the appellant was entitled to take recredit of the cenvat credit. Further after going through the,,,,
sub-section 3 of Section 142 of CGST Act, I find that as per the said sub-section, 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.",,,,
Further it is very clear that as per subsection (6)(a) of Section 142, every proceeding of appeal, review or reference relating to a claim for 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 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 existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944. Further I",,,,
find that the appellant had already debited the entire amount in their cenvat account and the said amount was debited under a bona fide belief that the,,,,
cash refund would be sanctioned to them and the very fact that cenvat credit was never disallowed, hence the cenvat credit lying in the balance of",,,,
cenvat account are liable to be refunded in cash to the appellant as per the provisions of sub-section 3 or sub-section (6)(a) of the Section 142 of,,,,
CGST Act. This issue is no more res integra and has been held in favour of the appellant by various decisions cited supra. Hence, by following the",,,,
ratio of the said decisions, I am of the considered view that the impugned order denying the cash refund is not sustainable in law and the appellant is",,,,
entitled to cash refund as per sub-section 3 and sub-section 6(a) of Section 142 of CGST Act. All the three appeals are accordingly allowed.,,,,
(Order was pronounced in Open Court on 31/03/2021),,,,
