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Rubamin Private Limited vs. Commissioner of C.E. & S.T. - (Customs, Excise and Service Tax Appellate Tribunal) (14 May 2024)

Assessee who is eligible for cenvat credit and unable to take the credit due to CGST regime after 1st July, 2017 shall be eligible for the cash refund


Goods and Services Tax

The issue involved in the present case is that whether the appellant is eligible to claim refund of CVD and SAD in respect of payment of custom duty for regularizing excess import under advance authorization prior to introduction of GST regime but the duty liability was finalized and paid after the introduction of GST. The said CVD and SAD was paid by the Appellant on their own suo moto in order to regularize excess import qua export obligation fulfillment.

The appellants have claimed the refund of CVD and SAD in terms of Section 142 (3) of CGST, 2017. As per Section 142 (3) of CGST, it is clear that, an assessee who is eligible for cenvat credit and unable to take the credit due to CGST regime after 01.07.2017 shall be eligible for the cash refund. In the present case, the CVD and SAD was paid which is admissible as cenvat credit to the appellants under the existing law i.e. Cenvat Credit Rules, 2004. Secondly the said amount is refundable to the appellants.

As regard the issue that whether the appellant's claim of CVD and SAD is hit by Rule 9 (1) (b) or(bb) of Cenvat Credit Rules, 2004, present Tribunal find that firstly there is no demand notice in respect of CVD and SAD which was paid by the appellants on their own and also no adjudication as regard the suppression fact, therefore, in absence of any charge by way of show cause notice or adjudication thereof, the allegation of suppressionof fact only to invoke Rule 9 (1) (b) or(bb) of Cenvat Credit Rules, 2004 is on assumption and presumption which cannot be accepted. Moreover, the payment of CVD and SAD is not towards the non-payment of duty by suppression of fact.

In the present case, the advance license is on record and since there was excess import as compared to the eligible under advance license, the Appellant have discharged the duty of CVD and SAD Suo moto for which no offence was made out by the department. Therefore, no suppression of fact is involved. Consequently, penal provision under Rule 9 (1) (b) or (bb) shall also not apply. Except the legal issue there is no discussion about the fact, documents and verification thereof, hence the matter needs to be remanded for this limited purpose for processing the fund claim of the Appellant.Accordingly, the impugned order is set aside. Appeals allowed by way of remand to the Adjudicating Authority.


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