Custom, Excise & Service Tax Tribunal
M/S Jindal Quality Tubular Ltd vs Cgst & Ce Agra on 25 March, 2026
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT No.II
(E-HEARING)
Excise Appeal No.70623 of 2025
(Arising out of Order-in-Appeal No.633-CE/APPL/LKO/2024 dated 30/09/2024
passed by Commissioner (Appeals) Customs, Central Excise & CGST,
Lucknow)
M/s Jindal Quality Tubular Ltd., ....Appellant
(A-1, UPSIDC Industrial Area,
Kosi Kalan, Mathura)
VERSUS
Commissioner of Central Excise &
CGST, Agra ....Respondent
(CGST Commissionerate, Mathura)
APPEARANCE:
Shri R. Santhanam, Advocate for the Appellant
Shri Santosh Kumar, Authorised Representative for the Respondent
CORAM: HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)
FINAL ORDER NO.70087/2026
DATE OF HEARING : 19 March, 2026
DATE OF PRONOUNCEMENT : 25 March, 2026
SANJIV SRIVASTAVA:
This appeal is directed against Order-in-Appeal No.633-
CE/APPL/LKO/2024 dated 30/09/2024 passed by Commissioner
(Appeals) Customs, Central Excise & CGST, Lucknow. By the
impugned order following has been held:-
"5.12 In view of the above findings and the judicial
pronouncement, I am the considered view that out of total
refund claim of Rs.8,43,240/- filed by the appellant, the
refund claim of Rs.4,48,532/- is proper and sanctionable to
them only and the rest refund claim of Rs.3,94,708/- of
the appellant is hereby rejected as time barred.
Excise Appeal No.70623 of 2025
2
5.13 The impugned order is modified to the above extent.
The appeal filed by the appellant is disposed of
accordingly."
2.1 Appellant having Central Excise Registration
No.AADCJ6035GEM001 was engaged in manufacture of Tubes,
Pipes and Hollow Profiles of Iron/Stainless Steel falling under
tariff heading No.73041110/73061100 of Central Excise Tariff
Act, 1985.
2.2 They have obtained an Advance Authorization License
No.0510401960 dated 15.03.2017 against which they had made
excess import without payment of customs duty vide a Bill of
Entry No.9746663 dated 19.05.2017 as pointed out by the
Norms Committee. They deposited the differential customs duty
along with interest as detailed in table below:-
Sl. No. Challan date Differential customs duty alongwith interest
1. 09.05.2019 6,20,477/-
2. 14.01.2022 7,05,088/-
2.3 Appellant filed refund claim in respect of above amount
contending that the amount paid by them towards CVD & SAD
were admissible to them as Cenvat credit under the erstwhile
Cenvat Credit Rules, 2004 prior to 01.07.2017. However, in the
GST regime w.e.f. 01.07.2017 they could not avail the said
amount as Cenvat credit and thus they are claiming refund of
this amount (Rs.8,43,240/-) vide refund claim dated 03.02.2023
under the provisions of Section 142 of the CGST Act, 2017.
2.4 A show cause notice dated 29.03.2023 was issued to them
and the same was adjudicated vide Order-in-Original
No.20/DC/C.Ex/DMTR/2023-24 dated 27.06.2023 vide which the
refund claim was rejected as barred by limitation.
2.5 Aggrieved appellant have filed appeal before Commissioner
(Appeals) which has been partially allowed, for the part their
appeal has been rejected, appellant has filed appeal before this
Tribunal.
2.6 Aggrieved appellant have filed this appeal.
3.1 I have heard Shri R. Santhanam learned Counsel
appearing for the appellant and Shri Santosh Kumar learned
Authorized Representative appearing for the revenue.
3.2 Arguing for the appellant learned Counsel submits that-
Excise Appeal No.70623 of 2025
3
Appellant was earlier operating in the name of M/s Jindal
Quality Tubular Ltd. and after their merger with M/s Jindal
Saw Ltd. vide order of NCLT dated 21.04.2024, all the
assets and liabilities of the said company were transferred
in the name of amalgamated company.
Though this order was prior to hearing by the
Commissioner (Appeals) and Order-in-Appeal, they had
failed to inform accordingly about the merger order.
However, in view of the above order of NCLT the refund
claim was due to the amalgamated company only.
The refund claim could not have been rejected on the
ground of time bar as this was in respect of the amounts
claimed as refund which became due during the period
when the country was going through the COVID situation,
Hon'ble Supreme Court has in Civil Writ Petition No.3 of
2020 observed that the period of limitation should exclude
the period of COVID.
Even otherwise the refund claim has become due to them
for the reason that the DGFT has issued EODC in respect of
advance authorization license number has in terms of
above EODC the amount paid by them should have been
refunded to them.
3.3 Authorized Representative reiterates the findings recorded
in the orders of the lower authorities.
4.1 I have considered the impugned orders along with the
submissions made in appeal and during the course of argument.
4.2 Impugned order records the findings as follows:-
"5.2 Facts of the case are that the appellant obtained an
Advance Authorization License No.0510401960 dated
15.03.2017 against which they had made excess imports
without payment of Customs duty vide Bill of Entry
No.9746663 dated 19.05.2017 as pointed out by the
Norms Committee. Accordingly, they deposited the
differential Customs duty amounting to Rs.6,20,477/-
along with interest vide Challan dated 09.05.2019 and the
differential Customs duty of Rs.7,05,088/- along with
interest vide Challan dated 14.01.2022.
Excise Appeal No.70623 of 2025
4
5.3 Ongoing through the bifurcation details of the
deposited differential Customs duty as submitted by the
appellant, I find that they had deposited the differential
CVD & SAD totally amounting to Rs.3,94,708/- vide
Challan dated 09.05.2019 and the differential CVD & SAD
totally amounting to Rs.4,48,532/- vide Challan dated
14.01.2022. It is a matter of fact that the appellant could
not avail the Cenvat credit of these amounts, deposited
towards CVD & SAD, in the GST regime in as much as the
Cenvat Credit Rules, 2004 ceases to exist w.e.f.
01.07.2017. Accordingly, the appellant has filed the
present refund claim of Rs.8,43,240/-under the provisions
of Section 142 of the CGST Act, 2017.
5.4 First, I take up the issue of limitation in the present
case. Section 142(3) of the CGST Act, 2017 provides that -
"(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:
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."
5.5 Ongoing through the aforesaid provision, I find that
the present refund claim filed by the appellant clearly falls
within the ambit of Section 142(3) of the CGST Act, 2017.
Since, such refund claims are to be disposed of in
accordance with the provisions of existing law, the
limitation period of one year from the relevant date i.e. the
Excise Appeal No.70623 of 2025
5
date of payment of duty as provided under Section 11B of
the Central Excise Act, 1944 is applicable in the present
case.
5.6 In the wake of the outbreak of Covid'19 pandemic in
the country, the Hon'ble Supreme Court vide order dated
10.01.2022 has directed to exclude the period from
15.03.2020 to 28.02.2022 for the purposes of limitations
as may be prescribed under any general or special laws in
respect of all judicial or quasi-judicial proceedings. It is
also ordered that -
"In cases where the limitation would have expired during
the period between 15.03.2020 till 28.02.2022,
notwithstanding the actual balance period of limitation
remaining, all persons shall have a limitation period of 90
days from 01.03.2022. In the event the actual balance
period of limitation remaining, with effect from 01.03.2022
is greater than 90 days, that longer period shall apply."
5.7 I am of the considered view that the filing of refund
application & disposal thereof should be considered as
quasi-judicial proceeding, consequently, the aforesaid
order of the Hon'ble Supreme Court is applicable in the
present case.
My view-point is supported by the Hon'ble High Court,
Bombay's order dated 10.01.2022 in the case M/s Saiher
Supply Chain Consulting Pvt. Ltd. Vs The Union of India,
wherein it was held that -
"Para 7- The Petitioner thereafter filed third refund
application on 30th September 2020. The Respondent
No.2 however rejected the said third refund
application by Order dated 26th November 2020 on
the ground that the said application was time barred.
The Petitioner filed this Writ Petition inter-alia
praying for restoration of the third refund application
and for various other reliefs.
Para 13- The Hon'ble Supreme Court by Order dated
23rd September 2021 in Misc. Application No. 665 of
2021 issued further directions that in computing the
period of limitation in any Suit, Appeal, Application
Excise Appeal No.70623 of 2025
6
and or proceedings, the period from 15th March
2020 till 2nd October 2021 shall stand excluded.
Para 14- In our view, the Respondent No.2 is also
bound by the said Order dated 23rd March 2020 and
the Order dated 23rd September 2021 and is require
to exclude the period of limitation falling during the
said period. Since the period of limitation for filing
the third refund application fell between the said
period 15th March 2020 and 2nd October 2021, the
said period stood excluded.
In our view, the impugned Order passed by the
Respondent No.2 is contrary to the Order passed by
the Hon'ble Supreme Court and thus deserves to be
quashed and set-aside."
5.8 I find that as per the Hon'ble Supreme Court's order
dated 10.01.2022, the period from 15.03.2020 to
28.02.2022 is to be excluded for the purposes of
limitations.
With respect to the deposit of the differential CVD & SAD
totally amounting to Rs.3,94,708/- vide Challan dated
09.05.2019, I notice that the limitation period of one year
as provided under Section 11B of the Central Excise Act,
1944 was expiring on 08.05.2020, falling between the
exclusion period from 15.03.2020 to 28.02.2022. Thus,
the actual balance period of limitation comes to 54 days
(period from 15.03.2020 to 08.05.2020). Since, the actual
balance period of limitation of 54 days was less than 90
days, the limitation period of 90 days was allowable w.e.f.
01.03.2022 in terms of the Hon'ble Supreme Court's order
dated 10.01.2022. Consequently, the last of filing of
refund claim with regard to the said Challan dated
09.05.2019 was 29.05.2022, whereas the refund claim has
been filed by the appellant on 03.02.2023. Hence, the
refund claim of Rs.3,94,708/- with respect to this challan
dated 09.05.2019 is clearly time barred.
As regards the deposit of the differential CVD & SAD totally
amounting to Rs.4,48,532/- vide Challan dated
14.01.2022, I find that the deposit date i.e. 14.01.2022
Excise Appeal No.70623 of 2025
7
falls between the exclusion period from 15.03.2020 to
28.02.2022. Therefore, as per the Hon'ble Supreme
Court's order dated 10.01.2022, the limitation period of
one year as provided under Section 11B of the Central
Excise Act, 1944 will be available with respect to this
Challan, which shall commence from 01.03.2022 and
ending on 28.02.2023. Since, the refund application has
been filed by the appellant on 03.02.2023, well within the
expiry date of limitation i.e. 28.02.2023, the same should
be considered as filed within the limitation period as
stipulated under Section 11B of the Central Excise Act,
1944.
5.9 Now, I discuss the case on merits with respect to the
refund claim involving the deposit of the differential CVD &
SAD totally amounting to Rs.4,48,532/- vide Challan dated
14.01.2022. I find that there is no dispute that the
appellant has deposited the differential CVD & SAD totally
amounting to Rs.4,48,532/- vide Challan dated
14.01.2022. There is also no doubt that the said deposited
differential CVD & SAD was admissible to the appellant as
Cenvat credit under the erstwhile Cenvat Credit Rules,
2004, the existing law. However, the appellant could not
claim this deposited amount as Cenvat credit in the GST
regime post 01.07.2017.
5.10 Section 142(3) of the CGST Act, 2017 deals with such
cases, which provides for refund of any amount of Cenvat
credit, admissible under the existing law. Since, the
aforesaid amount deposited by the appellant towards
differential CVD & SAD was admissible to them as Cenvat
credit under the erstwhile Cenvat Credit Rules, 2004, the
existing law, they are eligible for the refund of the said
deposited amount in terms of Section 142(3) of the CGST
Act, 2017.
5.11 Similar view has been taken by the Hon'ble CESTAT,
Principal Bench, New Delhi vide order dated 16.03.2022
passed in the case M/s New Age Laminators Pvt. Ltd. Vs
Commissioner, C.Ex & GST, Alwar, wherein it was held that
-
Excise Appeal No.70623 of 2025 8 "Para 7 - Having considered the rival contentions, I find that the payment of CVD and SAD subsequently during GST regime, for the imports made prior to 30.06.2017 is not disputed under the advance authorisation scheme. It is also not disputed that the appellant have paid the CVD and SAD in May, 2018 & May, 2019, by way of regularisation on being so pointed out by the Revenue Authority. Further, I find that the Court below have erred in observing in the impugned order, that without producing proper records of duty paid invoices etc. in manufacture of dutiable final product, refund cannot be given. I further find that refund of CVD and SAD in question is allowable, as credit is no longer available under the GST regime, which was however available under the erstwhile regime of Central Excise prior to 30.06.2017. Accordingly, I hold that the appellant is entitled to refund under the provisions of Section 142(3) and (6) of the CGST Act."
4.3 In respect the caim made by the appellant by invoking provisions of Section 142 of CGST Act, 2017, I do not find much merits in the said submission. This issue has been considered by the Hon'ble Jharkhand High Court in the case of M/s Rungta Mines Ltd. 2022 (67) GSTL 180 (Jharkhand) wherein following has been held:-
"Legal proposition on the point of interpretation of transitional provisions, vested rights etc. with reference to the judgments relied upon by the Learned Counsel of the petitioner.
10.The Learned Counsel for the petitioner has also referred to the judgment passed in the case of Union of India v. Filip Tiago De Gama of Vedam De Gama (supra) on the point that the transitional provisions are to be purposefully construed and the paramount object in statutory interpretation is to discover what the Legislature intended and this intention is primarily to be ascertained from the text of the enactment in question. This principle of statutory interpretation is well settled.
Excise Appeal No.70623 of 2025 9
11.So far as the case of K.S. Paripoornan (supra) is concerned, the Hon'ble Supreme Court has considered the role of "Transitional Provision" and the Learned Counsel for the petitioner has referred to Para-71 of the said judgment, which is quoted as under :-
Section 30 of the amending Act bears the "71. heading "Transitional provisions". Explaining the role of transitional provisions in a statute, Bennion has stated :
"Where an Act contains substantive, amending or repealing enactments, it commonly also includes transitional provisions which regulate the coming into operation of those enactments and modify their effect during the period of transition. Where an Act fails to include such provisions expressly, the court is required to draw inferences as to the intended transitional arrangements as, in the light of the interpretative criteria, it considers Parliament to have intended."
(Francis Bennion : Statutory Interpretation, 2nd Edn., p.
213) The Learned Author has further pointed out :
"Transitional provisions in an Act or other instrument are provisions which spell out precisely when and how the operative parts of the instrument are to take effect. It is important for the interpreter to realise, and bear constantly in mind, that what appears to be the plain meaning of a substantive enactment is often modified by transitional provisions located elsewhere in the Act." (p.
213) Similarly Thornton in his treatise on Legislative Drafting has stated :
"The function of a transitional provision is to make special provision for the application of legislation to the Excise Appeal No.70623 of 2025 10 circumstances which exist at the time when that legislation comes into force."
For the purpose of ascertaining whether and, if so, to what extent the provisions of sub-section (1A) introduced in Section 23 by the amending Act are applicable to proceedings that were pending on the date of the commencement of the amending Act it is necessary to read Section 23(1A) along with the transitional provisions contained in sub-section (1) of Section 30 of the amending Act."
12.There is no doubt about the aforesaid proposition that the transitional provisions are made to make special provision for the application of legislation to the circumstances which exist at the time when the legislation comes into force and are applicable to proceedings that were pending on the date of the commencement of the amending Act.
13.So far as the judgment in the case of J.K. Cotton Spinning and Weaving Mills Co. Ltd. (supra) is concerned, the petitioner has referred to Paragraphs 10 of the said judgment, which is quoted as under :-
Applying this rule of construction that in "10. cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the specific provision, we must hold that Cl. 5(a) has no application in a case where the special provisions of Cl. 23 are applicable."
The aforesaid judgment does not help the petitioner in any manner in view of the fact that there is no conflict amongst the various provisions of CGST Act referred to by the Learned Counsel for the petitioner during the course of argument, particularly with reference to Sections 140, 142 and 174 of the CGST Act. The provisions have been interpreted in later portion of this judgment.
Excise Appeal No.70623 of 2025 11
14.The Learned Counsel has further referred to the judgment in the case of CIT v. J.H. Gotla reported in (1985) 4 SCC 343 to submit that even in taxation, if strict literal construction leads to absurdity, construction which results in equity rather than injustice, should be preferred. However, during the course of argument, the Learned Counsel has failed to demonstrate as to how any of the provisions of CGST Act which have been referred to by the petitioner has led to any absurdity. The interpretation of the provisions of CGST Act particularly with reference to refund as contemplated in the Act itself is required to be seen in the light of the principles as has been laid down by the Hon'ble Supreme Court in the case of Union of India v. VKC Footsteps (supra), whose relevant portions have already been quoted above. There can be no doubt that the right to refund in the matter of taxation is a statutory right which is neither a fundamental right nor a constitutional right and there is no equity in taxation. The right crystalizes only when the statute permits refund as per law and prescribed procedure.
15.It has been submitted that in the case of Gammon India Ltd. v. Chief Secretary (supra), it has been held that the rights which are saved by saving provisions continues even after repeal. Further in the judgment passed by the Hon'ble Supreme Court in the case of Baraka Overseas Trader (supra), it has been held that the accrued rights under old law is to be continued under the new law. However, the moot question in the instant case is as to whether there was any existing right of availing Cenvat credit or refund on the date of coming into force of the CGST Act in favour of the petitioner which can be said to have accrued or vested and consequently saved by the repealing provision of CGST Act. The finding in later part of this judgment holds that the petitioner did not have any existing right of availing Cenvat credit or refund on the date of coming into force of the CGST Act which can be said to have accrued or vested and consequently saved by Excise Appeal No.70623 of 2025 12 Section 174 (repeal and saving) read with Section 6 of General Clause Act.
16.The Learned Counsel has themselves relied upon a judgment passed by the Hon'ble Supreme Court in the case of State of Punjab and Ors. v. Bhajan Kaur and Ors. (supra), wherein Section 6 of General Clauses Act has been interpretated by holding that the said provision inter alia saves a right accrued, but it does not create a right. Paragraph 14 of the aforesaid judgment is quoted hereinbelow for ready reference :-
"14. ... ... ... ... ... ... ... ... ... ... ... .... Section 6 of the General Clauses Act, therefore, inter alia, saves a right accrued and/or a liability incurred. It does not create a right. When Section 6 applies, only an existing right is saved thereby. The existing right of a party has to be determined on the basis of the statute which was applicable and not under the new one. If a new Act confers a right, it does so with prospective effect when it comes into force, unless expressly stated otherwise."
17.In the case of Glaxo Smith Kline PLC and Others (supra), the Hon'ble Supreme Court has upheld the view of the learned single judge of the High Court and held at Para 17 as under :-
"17. The Learned Single Judge's view that theprovisions of Section 78 of the Amendment Act have no application to the proceedings which stood concluded before the appointed day appears to be the correct view governing the issue. Since Chapter IV-A in question was merely repealed, the situation has to be dealt with in line with Section 6 of the General Clauses Act. The provisions of Section 78 are conditional provisions and are not intended to cover cases where the application for EMR had been rejected with reference to Section 21 of the Excise Appeal No.70623 of 2025 13 amending enactment. As noted above, Chapter IV-A was repealed. The effect of the repeal has to be ascertained in the background of Section 6 of the General Clauses Act. That being so, the order of the Division Bench cannot be sustained and that of the Learned Single Judge has to operate. The appeal is allowed but in the circumstances without any order as to costs."
18.In the case of Eicher Motors Ltd. v. Union of India (supra), it has been held that the rights of credit facilities accrued under existing law are not to be altered. Paragraphs 5 and 6 of the aforesaid judgment are quoted as under :-
"5. Rule 57F(4A) was introduced into the Rulespursuant to the Budget for 1995-96 providing for lapsing of credit lying unutilised on 16-3-1995 with a manufacturer of tractors falling under Heading No. 87.01 or motor vehicles falling under Heading Nos. 87.02 and 87.04 or chassis of such tractors or such motor vehicles under Heading No. 87.06. However, credit taken on inputs which were lying in the factory on 16-3-1995 either as parts or contained in finished products lying in stock on 16-3- 1995 was allowed. Prior to the 1995-96 Budget, the Central excise/additional duty of customs paid on inputs was allowed as credit for payment of excise duty on the final products, in the manufacture of which such inputs were used. The condition required for the same was that the credit of duty paid on inputs could have been used for discharge of duty/liability only in respect of those final products in the manufacture of which such inputs were used.
xx xx xx As pointed out by us that when on the strength of the Rules available, certain acts have been done by Excise Appeal No.70623 of 2025 14 the parties concerned, incidents following thereto must take place in accordance with the Scheme under which the duty had been paid on the manufactured products and if such a situation is sought to be altered, necessarily it follows that the right, which had accrued to a party such as the availability of a scheme, is affected and, in particular, it loses sight of the fact that the provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assessees concerned. Therefore, the Scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier Scheme was applied under which the assessees had availed of the credit facility for payment of taxes. It is on the basis of the earlier Scheme necessarily that the taxes have to be adjusted and payment made complete. Any manner or mode of application of the said Rule would result in affecting the rights of the assessees.
6. We may look at the matter from another angle. If on the inputs, the assessee had already paid the taxes on the basis that when the goods are utilised in the manufacture of further products as inputs thereto then the tax on these goods gets adjusted which are finished subsequently. Thus, a right accrued to the assessee on the date when they paid the tax on the raw materials or the inputs and that right would continue until the facility available thereto gets worked out or until those goods existed. Therefore, it becomes clear that Section 37 of the Act does not enable the authorities concerned to make a rule which is impugned herein and, therefore, we may have no hesitation to hold that the Rule cannot be applied to the goods manufactured prior to 16-3-1995 on which duty had Excise Appeal No.70623 of 2025 15 been paid and credit facility thereto has been availed of for the purpose of manufacture of further goods."
19.The Learned Counsel has also referred to the judgment passed in the case of CCE v. Grasim Industries Ltd. (supra) to submit that excise duty/Cenvat is value added tax. There is no doubt about the aforesaid proposition, as it is not in dispute in the instant case that the petitioner was entitled to take credit of the service tax paid to the port authorities for the "port services" by way of Cenvat credit as per the provisions of the rules.
20.However, in the instant case the petitioner has failed to follow the prescribed procedure to avail such a credit and consequently having lost such a right, he cannot claim revival of such a right and claim refund of the same by virtue of transitional provisions under Section 140(3) of the CGST Act. The facts involved in the present case would demonstrate that the petitioner had no existing right on the date of coming into force of CGST Act to avail credit of the service tax paid on "port services" as Cenvat credit and accordingly, the provision of Section 140(3) of the CGST Act cannot be construed to have conferred such a right which never existed on the date of coming into force of CGST Act.
21.So far as the judgment passed in the case of Kunal Kumar Tiwari v. State of Bihar (supra) is concerned, the same has been relied upon by the petitioner to submit that an interpretation which advances the purpose of object underlying the Act should be preferred. But the Learned Counsel for the petitioner has failed to show as to how the entitlements to Cenvat credit on service tax paid on "port services" which the petitioner did not claim as per procedure prescribed by law can be construed to confer such a right to claim such credit under transitional provisions followed by cash refund and how such a position in law would advance the purpose and object of CGST Act. Rather, the aforesaid interpretation sought to be given by Excise Appeal No.70623 of 2025 16 the petitioner is contrary to the very object and purpose of Section 142(3) of CGST Act which has been discussed at a later part of the Judgment.
22.So far as the judgment passed in the case of M/s. DMR Constructions (supra) by Hon'ble Madras High Court is concerned, the same related to transition of accumulated tax deducted at source which existed on the date of coming into force of CGST Act and relief was granted to the petitioner in terms of transitional credit under Section 140(1) of CGST Act.
23.However, in the instant case, the petitioner failed to claim transitional credit in terms of Section 140(1) of the CGST Act and wrongly took credit of the impugned service tax in ST-3 return and thereafter claimed refund of the same by referring to Section 142(3) of CGST Act. Accordingly, the said judgment does not apply to the facts and circumstances of this case.
The sequence of facts; case of the parties and the contents of the impugned orders
24.The petitioner was having Central Excise Registration for manufacture of sponge iron, billet and TMT Bar. The petitioner was also registered under Service tax only as a person liable to pay service tax under Reverse Charge Mechanism. Admittedly, the "port services" involved in this case is not covered under Reverse Charge Mechanism and therefore the same was not includable in the service tax return filed by the petitioner under ST-3. Accordingly, the petitioner was not entitled to avail credit of the impugned service tax paid on the "port services" in its service tax ST- 3 return.
25.It is not in dispute that the petitioner was entitled to claim Cenvat credit on the service tax paid on "port services" if used in the manufacturing activity for which the petitioner was registered under the Central Excise Act, 1944.
Excise Appeal No.70623 of 2025 17
26.The petitioner had imported coal through Bill of entry dated 27-4-2017 for using the same in or in relation to manufacture of dutiable final products. In course of the import, they received a bundle of services from M/s. Kolkata Port Trust during 26-4-2017 to 29-4-2017 in the nature of "port services" who issued Bill dated 23-5-2017 for Rs. 89,36,836/- which included service tax of Rs. 10,88,328/-. The petitioner claims to have paid the entire bill including service tax on port services in the month of April itself. The petitioner was entitled to claim the service tax paid on "port services" as Cenvat credit in their ER-1 return as per the provisions of existing law. The petitioner has submitted that the Cenvat credit was not taken as the original bill/invoice was not received though generated on 23-5-2017. Admittedly, the petitioner did not claim the service tax paid on "port services" involved in this case as Cenvat credit in their relevant ER-1 return.
27.On account of non-inclusion of the service tax paid on port services in ER-1 Return, the petitioner could not have claimed the transition of the said Cenvat credit as permissible transitional credit referrable to Section 140 of CGST Act through TRAN-1 and could not utilise the same under CGST Regime. Admittedly, the time for filing TRAN-1 was extended till 31-10-2017 but still the impugned service tax on "port services" could not be included (although by this time the original bill/invoice was received on 20-9-2017) as this Service Tax as Cenvat credit was not included in ER-1 return and the time for filing ER-1 return for the period in question had expired. Further the petitioner had claimed this amount in Service Tax return ST-3 filed on 22-9-2017.
28.Thus, the petitioner missed to exercise their rights to avail of transitional credit of the service tax paid on "port services" through the mechanism prescribed under the CGST Act (Section 140) read with the existing provisions of Cenvat Credit Rules, 2002. It is also important to note that Excise Appeal No.70623 of 2025 18 the existing provision did not permit Cenvat credit of service tax paid on "port services" without its inclusion in ER-1 Return and in absence of such inclusion within the prescribed time line the claim of credit stood completely lost and could not be claimed in TRAN-1 as transitional credit under CGST Act. Admittedly, the petitioner was not entitled to claim the service tax paid on "port services" in their service tax return ST-3 as the petitioner was not an output service provider and was liable to file service tax return and pay service tax only under reverse charge mechanism. Admittedly, "port services" were not under reverse charge mechanism.
29.Further, Rule 5 of Cenvat Credit Rules, 2004 permits refund only when the services are used to export goods or services, which is not the case in the present case. It is not the case of the petitioner that the impugned services were used for export of goods or services. Thus, under the existing law the claim of refund of service tax paid by the petitioner on port services was not admissible.
30.The case of the petitioner is that since they received the original copy of the Bill dated 23-5-2017 as late as on 20-9-2017, they could not take Cenvat credit in their last ER-1 return for June, 2017 filed on 30-7-2017. However, the petitioner took the credit of Rs. 10,88,328/- in their ST-3 return for April-June, 2017 filed on 22-9-2017 with a view to keep the said transaction above board so that their claim was not lost. It is also not in dispute that the last date for filing TRAN-1 was extended up to 31-10-2017.
31.From the entire records of the case this court does not find any explanation from the side of the petitioner as to under what circumstances the Bill dated 23-5-2017 was received by them as late as on 20-9-2017 (although as per the petitioner the port services were availed and the payment including service tax was made to the port authorities in the month of April, 2017), except the Excise Appeal No.70623 of 2025 19 statement that delayed receipt of the bill was beyond their control.
32.It is the case of the petitioner that they filed a refund claim for aforesaid amount of service tax paid to the port authority as they could not carry forward the aforesaid credit to their GST TRAN-1.
33.On 28-6-2018 the petitioner filed application for refund in Form - R for refund of service tax paid on "port services" to the port authorities by referring to provisions of Section 11B of Central Excise Act read with Section 142(3) of the CGST Act, 2017.
34.Notice dated 24-7-2018 was issued to the petitioner asking them to show cause as to why the refund claim should not be rejected on following ground :
(i) The petitioner had misled the Deptt. by claiming refund since they had erred by not incorporating said Cenvat credit in their ER-1 returns in time and claim the credit through TRAN-1 returns;
(ii) The petitioner had erroneously taken Cenvat credit of input service in their ST-3 return since the impugned service is not an input service for them as they are not engaged in provision of any output service;
(iii) The petitioner had not submitted original copy of the service invoice and the refund application had not been pre-receipted with revenue stamp on the original copy.
35.In their reply to show cause notice, the petitioner admitted that they had taken Cenvat credit of input service in their ST-3 return filed under Service Tax. The petitioner tried to justify and explain their act as under :-
(i) The reason behind disclosure of Cenvat credit claimed on input services in the ST-3 return was not for showing use of the said services for Excise Appeal No.70623 of 2025 20 providing output services but there was no scope for them to disclose the same in ER-1 returns which was already filed before receipt of the duty paying document. The substantive benefit of Cenvat credit should not be denied for technical breaches and that the legislation for granting input tax credit is beneficial piece of legislation and should be construed liberally;
(ii) The said services are used for procurement of inputs are amply covered in the definition of "input service" in terms of Rule 2(l) of CCR, 2004 and disclosure or non-disclosure of said credit in ST-3 and/or ER-1 are irrelevant.
(iii) Ultimate eligibility of the credit of the impugned services is not in dispute and the benefit of Cenvat credit eventually accrues to them which is the heart and soul of Section 142(3) of the CGST Act, 2017 and under Section 142(3) there is no statutory precondition that in order to claim the transitional credit, the claim must be disclosed in the ER-1 return;
(iv) Section 142(3) of the CGST Act, 2017 provides for refund of Cenvat credit in cash accruing to the assessee under Cenvat Credit Rules, 2004.
Section 142 is a residuary provision which deals with cases/contingencies which are not specifically covered or contemplated under Section 140 or
141. Since, in the instant case the provision of Section 140(5) or any other sub-section does not cover the contingencies as in the present case, it would be covered by the residuary provision of Section 142(3);
(v) Section 142(3) specifically saves Section 11B(2)(c) of Central Excise Act which deals with refund of Cenvat credit which remained un- utilized for one or another reason;
(vi) Referring to the second proviso to Section 142(3) of the CGST Act, 2017 which provides that if carry Excise Appeal No.70623 of 2025 21 forward of the transitional credit is claimed (under Section 140), then refund of such Cenvat credit would not be admissible. Therefore, from a plain reading of Section 142(3) it is crystal clear that Cenvat credit lawfully admissible/earned under the Cenvat Credit Rules, 2004 shall be allowed to be carried forward in the Electronic Credit Ledger (as per ER-1) or shall be allowed to be refunded in cash where it is not possible to carry forward in Electronic Credit Ledger.
36.The Adjudicating Authority, after considering the submissions of the petitioner observed that the petitioner is a manufacturer of dutiable goods and is registered under Service tax only as a person liable to pay service tax under Reverse Charge Mechanism.
The petitioner is not an output service provider and, hence, the claim filed as refund is not maintainable.
The petitioner had erroneously taken credit in ST-3 return since the impugned service is not an output service.
The refund of Cenvat credit is eligible only to export cases as per Rule 5 of Cenvat Credit Rules, 2004 and the present case being not falling under Rule 5, the petitioner is not entitled to refund under Section 11B of Central Excise Act, 1944 read with Rule 5 of the Cenvat Credit Rules, 2004.
The Adjudicating Authority observed that the transitional provisions under the CGST Act specifically provide transition of credit through TRAN-1 and the petitioner had failed to declare its claim in proper return i.e. ER-1. Accordingly, the Adjudicating Authority, vide the Order-in- Original dated 25-1-2019, rejected the refund claim under the provisions of Section 11B of the Central Excise Act, 1944 made applicable to Service Tax vide Section 83 of the Finance Act, 1994.
Excise Appeal No.70623 of 2025 22
37.Aggrieved with the aforesaid Order-in-Original the petitioner filed appeal reiterating the submissions made before the Adjudicating Authority. They made following main submissions before the appellate authority :
(i) The services were received by them during 26-4-
2017 to 29-4-2017 and payment, including service tax, was made in April, 2017. But they received the invoice on 20-9-2017 and they made provisional entry in their books of account. They could not take credit in their last ER-1 return for June, 2017 which they filed on 30-7-2017 for the reason beyond their control. They could not have filed any return thereafter when Central Excise Act, 1944 and the rules made thereunder was repealed;
(ii) They could not avail the benefit of Section 140(5) of the CGST Act, 2017 for the same reason that the original copy of the invoice was received in September, 2017. They were left with no option than to file refund Application vide their letter dated 29-6-2018 under residuary provision of Section 142(3) read with Section 174(2)(c) of the CGST Act and Section 11B(2)(c) of the Central Excise Act, 1944;
(iii) There is no requirement under Section 142(3) of the CGST Act of disclosure of the Cenvat credit in the ER-1 return like Section 140(5) and unlike Section 140(1).
38.The appellate authority rejected the appeal with the following findings :
(a) The transitional provisions contained in Section 140 of the CGST Act, 2017 provide for carrying forward of closing balance of the amount lying in Cenvat credit account as reflected in the statutory returns for the period immediately preceding the appointed day i.e. 1-7-2017.
Excise Appeal No.70623 of 2025 23
(b) The Appellant could not carry forward the credit of Rs. 10,88,328/- of service tax, paid to Kolkata Port Trust for procurement of a raw material used in manufacture of excisable goods, is not under dispute nor is the eligibility of Cenvat credit under "input service" under dispute.
(c) The transitional provisions under the CGST Act, 2017 provides specifically transition of credit through TRAN-1. The appellant has failed to declare the same in time in ER-1 return and also in TRAN-1 after enactment of CGST Act. Section 140 of the CGST Act, 2017, which is a transitional provision, essentially preserves all taxes paid or suffered by a taxpayer. Credit thereof is to be given in electronic credit register under the provisions of CGST Act, 2017.
(d) Further, the Board vide Circular No. 207/5/2017-S.T. clarified the issue related to payment of service tax after 30-6-2017, wherein it was clarified that the assessee can file TRAN-1 upto 30-10-2017 and same can also be revised. There could be parties who had billed on 30-6-2017 and not taken credit in electronic credit register and not transferred the same to GST regime.
(e) In the present case the authority was considering a claim of refund of Cenvat credit which was taken on "input services". Section 11B(1) clearly says that a person claiming refund has to make an application for refund of such duty before the expiry of the period prescribed and, in such form, and manner. If the excisable goods are not used as inputs in accordance with the rules made, there is no question of any refund. The language of the Rule 5 of the Cenvat Credit Rules, 2004 Excise Appeal No.70623 of 2025 24 indicates that where any input or input service is used in the final product, which is cleared for export etc. or used in the intermediate product cleared for export or used for providing output service which is exported, then, the Cenvat credit in respect of the input or input service so used, shall be allowed to be utilised by the manufacturer or provider of output service towards payment of duty of excise on any final product cleared for home consumption or for export, on payment of duty or service tax on output service. When for any reason, such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitation as may be specified by the Central Government by a notification.
(f) The appellate authority referred to a judgment passed by the North Zonal Bench of the CESTAT in the case of Purvi Fabrics & Texturise (P) Ltd. v. Commissioner of Central Excise, Jaipur-II - 2004 (172) E.L.T. 321 (Tri. - Del.), wherein it was held that there is no legal provision existing for refund either by cash or cheque. The only exception carved out is that the refund in cash is granted as an incentive measure to the exporter. The provisions and particularly Section 11B of the Central Excise Act provides for payment of amount of refund to the applicant only in situations specified in proviso to sub-section (2) of Section 11B of the Central Excise Act, 1944. The appellate authority held that the petitioner has attempted to claim something which the law does not permit at all.
(g) The appellate authority also held that the claim of refund is not a matter of right unless vested by law. The plea of injustice or hardship cannot Excise Appeal No.70623 of 2025 25 be raised to claim refund in the absence of statutory mandate. In this regard, a reference was made to the judgment of the Hon'ble Supreme Court setting out the fundamental legal principles that in a fiscal statute, nothing can be read into its provisions and rather should not be read, which is expressly not there. In other words, an implied meaning cannot be given. Para 20 of the judgment passed by the Hon'ble Supreme Court, Union of India and Ors. v. Ind-Swift Laboratories Limited - (2011) 4 SSC 635 = 2011 (265) E.L.T. 3 (S.C.) was referred as under :-
A taxing statute must be interpreted in the "20. light of what is clearly expressed. It is not permissible to import provisions in a taxing statute so as to supply any assumed deficiency. In support of the same we may refer to the decision of this Court in CST v.
Modi Sugar Mills Ltd. wherein this Court at AIR para 11 has observed as follows :
"11..... In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: It cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency."
(h) The appellate authority recorded that the petitioner had received the invoice from the service provider on 20-9-2017 and by that Excise Appeal No.70623 of 2025 26 time, they had already filed their last ER-1 return for the month of June, 2017. The appellate authority found nothing in Rule 5 permitting refund of unutilised credit. The appellate authority held that the present situation is not a case of a manufacturer or producer of final products seeking to claim Cenvat credit of the duty paid on inputs lying in stock or in process when the manufactured or produced goods ceases to be exempted goods or any goods become excisable. The appellate authority also held that refund of Cenvat credit is permissible where any input is used for final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export. Therefore, in the scheme of the rules, what is sought by the petitioner is not permissible. Thus, the attempt by the petitioner to claim refund of Cenvat credit was held to be not allowable and the appeal was rejected.
Interpretation of Section 142(3) read with Section 140(1), 140(5) and Section 174 of CGST Act vis-a vis the facts of this case.
39.The relevant portions of the aforesaid sections as relied upon by the Learned Counsel for the petitioner during the course of arguments are as under :
Section 140(1) and (5) of the CGST Act reads as under :-
A registered person, other than a person 140(1) opting to pay tax under section 10, shall be entitled to take, in his electronic credit ledger, the amount of CENVAT Credit of eligible duties carried forward in the return relating to the period ending with the day immediately preceding the Excise Appeal No.70623 of 2025 27 appointed day, furnished by him under the existing law within such time and in such manner as may be prescribed :
PROVIDED that the registered person shall not be allowed to take credit in the following circumstances, namely :-
(i) where the said amount of credit is not admissible as input tax credit under this Act; or
(ii) where he has not furnished all the returns required under the existing law for the period of six months immediately preceding the appointed date; or
(iii) where the said amount of credit relates to goods manufactured and cleared under such exemption notifications as are notified by the Government.
A registered person shall be entitled to 140(5) take, in his electronic credit ledger, credit of eligible duties and taxes in respect of inputs or input services received on or after the appointed day but the duty or tax in respect of which has been paid by the supplier under the existing law, within such time and in such manner as may be prescribed, subject to the condition that the invoice or any other duty or tax paying document of the same was recorded in the books of account of such person within a period of thirty days from the appointed day :
PROVIDED that the period of thirty days may, on sufficient cause being shown, be extended by the Commissioner for a further period not exceeding thirty days :
PROVIDED FURTHER that said registered person shall furnish a statement, in such manner as may be prescribed, in respect of credit that has been taken under this sub- section."
Section 142(3) of the CGST Act reads as under :-
Excise Appeal No.70623 of 2025 28 Every claim for refund filed by any "142(3) 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"
The Sections 173 and 174 of CGST Act are quoted as under :-
Amendment of Act 32 "173. of 1994 Save as otherwise provided in this Act, Chapter V of the Finance Act, 1994 shall be omitted.
Repeal and saving. - 174. Save as otherwise provided in this Act, on and (1) from the date of commencement of this Act, the Central Excise Act, 1944 (1 of 1944) (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), and the Central Excise Tariff Act, 1985 (5 of 1986) (hereafter referred to as the repealed Acts) are hereby repealed.
Excise Appeal No.70623 of 2025 29 The repeal of the said Acts and the amendment of the Finance Act, (2) 1994 (32 of 1994) (hereafter referred to as "such amendment" or "amended Act", as the case may be) to the extent mentioned in the sub-section (1) or section 173 shall not -
(a) revive anything not in force or existing at the time of such amendment or repeal; or
(b) affect the previous operation of the amended Act or repealed Acts and orders or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repealed Acts or orders under such repealed or amended Acts :
PROVIDED that any tax exemption granted as an incentive against investment through a notification shall not continue as privilege if the said notification is rescinded on or after the appointed day; or
(d) affect any duty, tax, surcharge, fine, penalty, interest as are due or may become due or any forfeiture or punishment incurred or inflicted in respect of any offence or violation committed against the provisions of the amended Act or repealed Acts; or
(e) affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or Excise Appeal No.70623 of 2025 30 punishment may be levied or imposed as if these Acts had not been so amended or repealed;
(f) affect any proceedings including that relating to an appeal, review or reference, instituted before on, or after the appointed day under the said amended Act or repealed Acts and such proceedings shall be continued under the said amended Act or repealed Acts as if this Act had not come into force and the said Acts had not been amended or repealed.
The mention of the particular matters (3) referred to in sub-sections (1) and (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal."
40.Section 142 of the CGST Act, 2017 provide for Miscellaneous Transitional Provisions. The following are the pre-conditions of refund in cash under Section 142(3) :-
(a) Sub-section (3) deals with claim for refund filed before, on or after the appointed day. Thus it, inter alia, deals with applications for refund filed before the appointed date and pending on the appointed date apart from the refund applications filed on or after the appointed date.
(b) Further the refund application should be for refund of any amount of Cenvat credit, duty, tax, interest or any other amount paid under the existing law.
(c) Such application filed before, on or after the appointed day is to be disposed of in accordance with the provisions of existing law.
(d) If any amount eventually accrues the same is to be refunded in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than Excise Appeal No.70623 of 2025 31 the provisions of sub-section (2) of Section 11B of the Central Excise Act, 1944.
(e) It also provides that where any claim for refund of Cenvat credit is fully or even partially rejected, the amount so rejected shall lapse.
(f) The second proviso provides 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 the CGST Act.
41.Thus, Section 142(3) of CGST Act clearly provides that refund application with respect of any amount relating to Cenvat credit, duty, tax, interest or any other amount paid under the existing law is to be disposed of in accordance with the provisions of existing law and if any such amount accrues the same shall be paid in cash. Such right to refund in cash has been conferred 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.
42.It is not in dispute that the refunds under the existing law of Service Tax as well as Central Excise Act, 1944 are governed by Section 11B of the Central Excise Act, 1944 and sub-section (2) of Section 11B also refers to application for refund made under Section 11B(1) of Central Excise Act, 1944. Further Section 11B(3) of Central Excise Act, 1944 clearly provides that all kinds of refunds including those arising out of judgment, decree or orders of court or tribunal are to be dealt with in accordance with the provisions of Section 11B(2) of Central Excise Act, 1944. It is also important to note that Section 11B(2) of Central Excise Act, 1944 deals with the manner in which applications for refund under Section 11B(1) are to be dealt with as it uses the words "such application" which is clearly referrable to Section 11B(1) of Central Excise Act, 1944. Further, the proviso to Section 11B(2) deals with Excise Appeal No.70623 of 2025 32 situations of rebate of duty; unspent advance deposits; principles of unjust enrichment in cases where duty of excise is paid by manufacturer or borne by buyer and who have not passed on the incidence of such duty to any other person; and also where duty of excise is borne by any other class of applicant as the central government may notify in official gazette with a further proviso regarding unjust enrichment.
43.The entire Section 11B of Central Excise Act, 1944, as it stood immediately before the appointed date, does not sanction any refund where the assessee has failed to claim Cenvat credit as per Cenvat Credit Rules, 2004 and has lost its right to claim such credit by not claiming it within the time prescribed. Further Section 11B also has its own strict time lines for claiming refund. Rule 5 of the Cenvat Credit Rules provides for refund only when the inputs are used in relation to export, which is not the case here. These aspects of the matter have been rightly considered and decided against the petitioner while passing the impugned orders whose details have already been stated above.
44.Under the provisions of Section 11B the right to claim refund was conferred not only to the assessee but also to such classes of applicants as notified by the Central Government and also covers situations arising out of judgments of Courts and Tribunals. On the appointed date there could be claims of refund of any amount of Cenvat credit, duty, tax, interest or any other amount paid under the existing law in connection with which the applications for refunds were pending or time limit for claiming refund was yet to expire or may crystalize on account of any judgment of Courts or Tribunals in relation to pending litigations. These are some of the situations which would be covered by the miscellaneous transitional provisions as contained in Section 142(3) of CGST Act which would Excise Appeal No.70623 of 2025 33 continue to be governed by Section 11B(2) of Central Excise Act, 1944.
45.The provision of Section 142(3) does not entitle a person to seek refund who has no such right under the existing law or where the right under the existing law has extinguished or where right under the new CGST regime with respect to such claim has not been exercised in terms of the provision of CGST Act and the rules framed and notifications issued. Meaning thereby, Section 142(3) does not confer a new right which never existed under the old regime except to the manner of giving relief by refund in cash if the person is found entitled under the existing law in terms of the existing law. Section 142(3) does not create any new right on any person but it saves the existing right which existed on the appointed day and provides the modalities for refund in cash if found entitled under the existing law as the entire claim is mandated to be dealt with as per the existing law. It neither revive any right which stood extinguished in terms of the existing law nor does it create a new right by virtue of coming into force of CGST Act.
46.Section 174 of the CGST Act read with Section 6 of the General Clauses Act saves the right acquired, accrued or vested under the existing law and does not create any new right which never existed on the appointed day i.e. on 1-7-2017 under the existing law.
47.The argument of the petitioner by referring to second proviso to Section 142(3) of CGST Act that it indicates that Section 142(3) would apply to the situations where the assessee has failed to take transitional credit under Section 140(1), is also devoid of any merits. The second proviso only indicates that if the assessee has taken transitional credit he will not be entitled to refund. Certainly, an assessee cannot simultaneously claim transitional credit as well as refund of the same amount. The second proviso to Section 143(2) cannot be said to be Excise Appeal No.70623 of 2025 34 an eligibility condition to claim refund but is only a condition which governs refund as an assessee cannot be permitted to have transitional credit as well as refund of the same tax amount.
48.Section 140(5) applies under the circumstances where input services are received after the appointed day but the tax has been paid by the supplier under the existing law within the time and in the manner prescribed with a further condition that the invoice etc. are recorded in the books of account of the such person within a period of 30 days from the appointed day. Section 140(5) also does not help the petitioner. Section 140(5) has no applicability to the facts and circumstances of this case. In the instant case, admittedly the services in the nature of "port services" were received by the petitioner in the month of April, 2017 and invoice was also generated in the month of May, 2017.
49.In the peculiar facts of this case, the petitioner did not claim transitional credit but claimed the impugned amount of service tax on "port services" as credit in their ST-3 return which they were admittedly not entitled as they were assessee under service tax only on reverse charge mechanism and admittedly the "port services"
availed by the petitioner was not covered under reverse charge mechanism. Thus, the petitioner on the one hand illegally took credit of service tax on "port services" as credit in their ST-3 return and on the other hand filed application for refund of the same amount under Section 142(3) of the CGST Act which is certainly not permissible in law. The authorities have rightly considered these aspects of the matter also while rejecting the application for refund filed by the petitioner.
50.It is not in dispute that the petitioner has claimed the credit of service tax involved in the present case paid on "port services" as "input service" in ST-3 return filed on 22-9-2017, though they were not entitled to claim such a Excise Appeal No.70623 of 2025 35 credit. It is further not in dispute that the petitioner did not include the impugned service tax paid on "port services" in its ER-1 return and accordingly was neither entitled to include nor included the same as transitional credit in TRAN-1 under CGST Act. As per the notification (Annexure-5) extending the date of filing TRAN-1 to 31- 10-2017, the same was in relation to certain service tax issues which were paid after 30-6-2017 under reverse charge basis to cover instances of bills raised on 30-6- 2017 since credit is available only if the payment is made and the payment in such cases could be made only after 30-6-2017. However, in the instant case the bill was admittedly generated on 23-5-2017, services availed and bill amount including service tax was paid in April, 2017 but the original bill did not reach the petitioner for unknown/undisclosed reasons.
51.It is apparent from the impugned orders that the specific case of the respondent is that the petitioner had claimed Cenvat credit under ST-3 return thereby treating the services involved in the present case as their input services used for providing output service, whereas they are not output service provider and the same cannot be used for providing output services. Therefore, it cannot be their input services under Rule 2(l) of Cenvat Credit Rules, 2004. I am also of the considered view that the petitioner could not have claimed the impugned service tax on port services in ST-3 return as they were registered for discharging their liability under the service tax only on reverse charge mechanism. Rather it is the case of the petitioner that they had included the impugned service tax in ST-3 Return under compelling circumstances of non- receipt of original invoice dated 23-5-2017 and this was done only attempting to save their credit which they had failed to claim through ER-1 return and then as transitional credit through TRAN-1 under Section 140(1) of the CGST Act. Thus, the authority has rightly held that petitioner had wrongly claimed Credit of the impugned service tax under Excise Appeal No.70623 of 2025 36 ST-3 return and omitted to claim the impugned service tax as Cenvat credit in ER-1 Return.
52.Further case of the respondent is that the petitioner as a manufacturer was eligible to claim Cenvat credit on impugned service i.e. "port services" and should have claimed the credit in their ER-1 Return within the prescribed time and accordingly could have claimed transitional credit through TRAN-1 under Section 140 of CGST Act. Thus, late receipt of the original invoice which has been cited as the reason for failure to claim Cenvat credit under the existing law and transitional credit under Section 140(1) of the CGST Act was wholly attributable to acts and omissions of the petitioner and its service provider of the "port services" and the respondent authorities had no role to play. The petitioner had failed to avail the opportunity to claim Cenvat credit of service tax on port services in terms of the existing law read with Section 140 of CGST Act and had no existing right of refund on the date of coming into force of CGST Act. The petitioner having not used the port services for export was not entitled to claim refund under the existing law. The petitioner was also not entitled to refund on account of the fact that the petitioner had already taken credit of the service tax paid on port services in ST-3 Return of service tax although admittedly the petitioner was not entitled to take such credit in ST-3 Return. On account of aforesaid three distinct reasons the petitioner was rightly held to be not entitled to refund under Section 142(3) of CGST Act by the impugned orders.
53.All the aforesaid provisions referred to and relied upon by the Learned Counsel of the petitioner do not entitle a person like the petitioner to any relief in the circumstances of acts and omissions of the service provider (port authority) or the service recipient (the petitioner) who have failed to comply the provision of law, both under the existing law and also under the CGST Act.
Excise Appeal No.70623 of 2025 37 The relied upon provisions of CGST Act do not cover any such situation relating to any consequences due to inter parte acts and omissions. In the instant case, as per the case of the petitioner, the entire problem has cropped up due to non-receipt of the invoice in original from the port authorities although the port services were availed and payments for the same to the port authorities were made by the petitioner in the month of April, 2017, the invoice was generated by the port authorities in the month of May, 2017 but the original invoice was received by the petitioner only on 20-9-2017 i.e. after coming into force of CGST Act. The late receipt of the invoice is essentially between the petitioner and the port authorities and the tax collecting authorities had nothing to do in the matter. Certainly, the delay in receipt of original invoice is not attributable to the respondent authorities under the existing law or under the new law.
54.The authorities have held in the impugned orders that in the instance case, the timeline for claiming Cenvat credit qua the service tax paid on port services was not followed by the petitioner, although the services were availed, the entire payment was made and the bill was also generated in the month of April/May, 2017. Further, it has also been held in the impugned orders that the petitioner not only failed to claim the Cenvat credit as per law, but illegally claimed the credit of the same while filing service tax return although the petitioner was not entitled to do so as the petitioner was not registered as a service provider. The authorities have also held that the service tax paid on port service was not eligible for refund under the existing law as the said services were not utilised for export. Thus, the petitioner on the one hand did not claim Cenvat credit as per the procedure established by law under the existing law and on the other hand violated the provisions of law while filing his service tax returns and claimed the amount as input service and thereafter filed his petition for refund on 28-6-2018 referring to Section 142(3) of the CGST Act.
Excise Appeal No.70623 of 2025 38 The petitioner never had a right to claim refund under the existing law and had failed to exercise their right to claim Cenvat credit as per law and wrongly claimed the impugned amount as credit in Service Tax Return (S.T. 3 return).
55.In view of the aforesaid findings, I do not find any reason to interfere with the findings and reasons assigned by the adjudicating authority as well as the appellate authority rejecting the application for refund filed by the petitioner under Section 11B of Central Excise Act read with Sections 142(3) and 174 of CGST Act. The impugned orders are well reasoned orders calling for no interference. Accordingly, this writ petition is dismissed."
4.4 This decision was relied upon by the Hyderabad Bench of this Tribunal in the case of M/s C.A.D. Vision Engineers Pvt. Ltd. 2024 (19) Centax 289 (Tri.-Hyd) by holding as follows:-
"13. Therefore, essentially when there is no provision in the law either under the Cenvat Credit Rules 2004 or in the Finance Act 1994 to allow cash refund, for such accumulated credit, Section 142(3), per se, cannot make it an eligible refund merely because the appellant have not been able to utilize on the ground of not having filed the revised return or were not able to take the TRAN-1 route etc., within specified time. I also observe that in the case of Banswara Syntex v. CCE [2018 (91) TMI 1064] = 2019 (363) E.L.T. 773 (Raj.), the Hon'ble Division Bench of Rajastan High Court held that refund of accumulated unutilized credit on account of education cess and secondary and higher secondary education cess was not entitled for cash refund in view of their having no provision under the Act of 1944.
14. Further, I also find that the issue of the scope of Section 142(3) of the Act came up before Hon'ble Jharkhand High Court in the case of M/s Rungta Mines v.
CCE, Jamshedpur [2022-TIOL-252-HC-Jharkhand-GST] = Excise Appeal No.70623 of 2025 39 2022 (67) G.S.T.L. 180 (Jhar.) = (2022) 1 Centax 151 (Jhar.) = (2022) 145 taxmann.com 456 (Jhar.). In this case Hon'ble High Court, interalia, held that the provision of Section 142(3) does not entitle a person to seek refund where no such rights occur under the existing law or new CGST regime in terms of provision of CGST Act and the rules framed and notification issued thereunder. Meaning thereby, Section 142(3) does not confer a new right which never existed under the old regime to the manner of giving relief if the person is not entitled under the existing law. The relevant paras of the judgment are reproduced below for ease of reference:
45. The provision of section 142(3) does not entitle a person to seek refund who has no such right under the existing law or where the right under the existing law has extinguished or where right under the new CGST regime with respect to such claim has not been exercised in terms of the provision of CGST, Act and the rules framed and notifications issued. Meaning thereby, section 142(3) does not confer a new right which never existed under the old regime except to the manner of giving relief by refund in cash if the person is found entitled under the existing law in terms of the existing law. Section 142(3) does not create any new right on any person but it saves the existing right which existed on the appointed day and provides the modalities for refund in cash if found entitled under the existing law as the entire claim is mandated to be dealt with as per the existing law. It neither revive any right which stood extinguished in terms of the existing law nor does it create a new right by virtue of coming into force of CGST, Act.
46. Section 174 of the CGST Act read with section 6 of the General Clauses Act saves the right acquired, accrued or vested under the existing law and does not create any new right which never existed on the appointed day i.e on 1-7-
2017 under the existing law.
Excise Appeal No.70623 of 2025 40
47. The argument of the petitioner by referring to second proviso to section 142(3) of CGST Act that it indicates that section 142(3) would apply to the situations where the assessee has failed to take transitional credit under section 140(1), is also devoid of any merits. The second proviso only indicates that if the assessee has taken transitional credit he will not be entitled to refund. Certainly, an assessee cannot simultaneously claim transitional credit as well as refund of the same amount. The second proviso to section 143(2) cannot be said to be an eligibility condition to claim refund but is only a condition which governs refund as an assessee cannot be permitted to have transitional credit as well as refund of the same tax amount.
48. Section 140(5) applies under the circumstances where input services are received after the appointed day but the tax has been paid by the supplier under the existing law within the time and in the manner prescribed with a further condition that the invoice etc are recorded in the books of account of the such person within a period of 30 days from the appointed day. Section 140(5) also does not help the petitioner. Section 140 (5) has no applicability to the facts and circumstances of this case. In the instant case, admittedly the services in the nature of "port services" were received by the petitioner in the month of April 2017 and invoice was also generated in the month of May 2017.
The ratio of the aforesaid judgment is squarely applicable to the facts of the case in so far as the interpretation of Section 142(3) of the Act is concerned. It must also be noted that a plain reading of provisions under the Act clearly supports this interpretation. There is no ambiguity in so far as wordings under section 142(3) are concerned."
4.5 However, I do not find revenue challenging any part of the impugned order allowing certain portions of the refund claim relying on certain decisions of this Tribunal. As this issue is not Excise Appeal No.70623 of 2025 41 before me, I am not in position to interfere with that part of the order, even though the decision of Hon'ble High Court is contrary.
4.6 On the issue of limitation I observe that impugned order denies the refund claim in respect of payments made on 09.05.2019 and not in respect of the amounts paid from 01.04.2022. In fact amounts paid vide challan dated 14.01.2022 has been allowed to the appellant by the impugned order. I have been informed that this part of the order has already been implemented by the jurisdictional revenue authorities. Further even if the arguments as made by the appellant were to be accepted then also appellant should have filed the refund claim within six months from the date of challan. In terms of CENVAT Credit Rules, 2004 as amended from time to time the person seeking CENVAT Credit against any document was required to take the credit within six months form the date of document. In case of Kusum Ingots & Alloys Ltd. [2000 (120) E.L.T. 214 (Tribunal - LB)] a larger bench of Tribunal held as follows:
"10. The Notification No. 28/95-C.E.(N.T.), dated 25-6- 1995 came into force from 25-6-1995 and provieds that credit should be taken within six months from the issue of duty paying documents. The following new proviso has been incorporated in Rule 57G (2) :
"Provided further that the manufacturer shall not take credit after six months from the date of issue of any of the documents specified in the First proviso to this Sub-Rule."
11. The contention of the appellant is that some reasonable period should have been given to the manufacturer who were having duty paying documents which were more than six months old on the date of amendment and no credit was taken on them, to take credit on such documents, the appellant replied upon the Hon'ble Supreme Court case Union of India v. Harnam Singh (Supra). We find that Hon'ble Supreme Court in the case of Miles India Limited v. Assistant Collector of Customs, reported in 1987 (30) E.L.T. 641 (S.C.) and in the case of Collector of Central Excise, Chandigarh v.
Excise Appeal No.70623 of 2025 42 Doaba Co-operative Sugar Mills, reported in 1988 (37) E.L.T. 478 (S.C.) held that authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation, prescribed in the Act will prevail. We find no such provisions under the Central Excise Act or under the Rules where the Tribunal can issue such directions as given by the Hon'ble Supreme Court in the case of Union of India v. Harnam Singh (Supra). Therefore there is no merit in this plea of the appellants. The appellants also relied upon the decision of the Hon'ble Supreme Court in the case of Eicher Motors Ltd. v. Union of India, reported in 1999 (106) E.L.T. 3 (S.C.) = 1999 (30) RLT 829 (S.C.) to say that Section 37 of Central Excise Act does not empower the Revenue to make such rule, as the Clause XVI (a) of Sub-Section 2 of Section 37, only enable the Government to make rules which provides for credit of duty paid on the goods in or in relation to the Excise Rules.
12. We find that after the decision of the Hon'ble Supreme Court in the case of Eicher Motors Ltd. v. Union of India (Supra), Sub-Section XXVIII is introduced in Section 37 to provide for Rules which empower the Government to make rules for not allowing credit to be utilised for payment of duty on excisable goods, by Section 131 of Finance Act, 1999. Therefore, after this amendment reliance by the appellants on the decision in the case of Eicher Motors Ltd. v. Union of India will not help them. If a manufacturer wants to avail the benefit of Modvat credit in respect of inputs used in or in relation to the manufacture of final product on payment of duty on such final products under Rule 57A of the Central Excise Rules, he should follow the procedure laid down under the Modvat Scheme. The contention of the appellants is that if on the inputs the manufacturer had already paid the duty on the basis that when the goods are utilised in the manufacture of final product then tax on these goods are to be adjusted and this right accrued to the manufacturer on the date when Excise Appeal No.70623 of 2025 43 they paid the tax on the inputs. The right will continue till the facility is available. A manufacturer who is working under the Modvat Scheme can certainly utilise the credit of the duty paid on the inputs used in or in relation to the manufacture of final product for payment of duty on such final product; but he has to take credit on such inputs within six months from the date of issue of the duty paying documents. After the amendment credit cannot be taken on duty paying documents which are more than 6 months old.
13. In view of the above discussions, we answer the question referred to Larger Bench in the favour of Revenue. Therefore, the view taken in case of Osram Surya Pvt. Ltd. v. Commissioner of Central Excise, Indore, reported in 1998 (29) RLT 684 is the correct view and the contrary view taken in correct."
The decision in case of Osram Surya Pvt Ltd. approved by the larger bench has also been upheld by the Hon'ble Supreme Court as reported at [2002 (142) E.L.T. 5 (S.C.)] observing as follows:
"8. It is vehemently argued on behalf of the appellants that in effect by introduction of this rule, a manufacturer in whose account certain credit existed, would be denied of the right to take such credit consequently, as in the case of Eicher (supra), a manufacturer's vested right is taken away, therefore, the rule in question should be interpreted in such a manner that it did not apply to cases where credit in question had accrued prior to the date of introduction of this proviso. In our opinion, this argument is not available to the appellants because none has questioned the legality, or the validity of the rule in question, therefore, any argument which in effect questions the validity of the rule, cannot be permitted to be raised. The argument of the appellants that there was no time whatsoever given to some of the manufacturers to avail the credit after the introduction of the rule also is based on arbitrariness of the rule, and the same also will Excise Appeal No.70623 of 2025 44 have to be rejected on the ground that there is no challenge to the validity of the rule.
9. Without such a challenge, the appellants want us to interpret the rule to mean that the rule in question is not applicable in regard to credits acquired by a manufacturer prior to the coming into force of the rule. This we find it difficult because in our opinion the language of the proviso concerned is unambiguous. It specifically states that a manufacturer cannot take credit after six months from the date of issue of any of the documents specified in the first proviso to the said sub-rule. A plain reading of this sub- rule clearly shows that it applies to those cases where a manufacturer is seeking to take the credit after the introduction of the rule and to cases where the manufacturer is seeking to do so after a period of six months from the date when the manufacturer received the inputs. This sub-rule does not operate retrospectively in the sense it does not cancel the credits nor does it in any manner affect the rights of those persons who have already taken the credit before coming into force of the rule in question. It operates prospectively in regard to those manufacturers who seek to take credit after the coming into force of this rule. Therefore, in our opinion, the Tribunal was justified in holding that the rule in question only restricts a right of a manufacturer to take the credit beyond the stipulated period of six months under the rule. Therefore, this appeal will have to fail."
Thus in case the appellant case is that they were seeking the refund of the amount which was paid by them under Challan dated 09.05.2019, they could have claimed the CENVAT Credit of the same only within six months from the date of Challan. Appellant has claimed refund of the amount paid under the said Challan stating that they could not have claimed the said CENVAT Credit and refund be allowed to them in terms of transitional provisions as contained in Section 142 of the CGST Act, 2017. However I find that the right even at the time when erstwhile CENVAT Credit Rules, 2004 were in force, the appellant Excise Appeal No.70623 of 2025 45 could have claimed the CENVAT Credit only upto 09.11.2019 and not beyond that date. Thus the date by which appellant could have filed the refund claim in lieu of the CENVAT Credit should expire on 09.11.2019.
4.7 I do not find any merits in the submissions made by the appellant with regards to the applicability of Hon'ble Supreme Court's decision in suo motu Writ Petition No.3 of 2020. The said decision was rendered for the period from 20th March 2020 when COVID pandemic brought out in the country. The said decision would not be applicable if the payments for which refund was claimed in lieu of CENVAT Credit was made against Bill of Entry No.9746663 dated 19.05.2017 vide challan dated 09.05.2019. The claim to CENVAT Credit and refund had expired much before the onset of COVID with effect from 20.03.2020. I do not find any merits in the challenge made to the impugned order, rejecting this refund amount on ground of limitation. 4.8 I also do not find any merits in the claim made by the appellant by referring to the EODC issued by the DGFT, any amounts which was paid against Bill of Entry No.9746663 dated 19.05.2017 vide challan dated 09.05.2019 on being pointed out by the norms committee was customs duty in terms of Section 12 of the Customs Act, 1962 and the refund claim if any was required to be filed in terms of Section 27 of the Customs Act and not under Section 11B of Central Excise Act read with Section 142 of CGST Act, 2017. Appellant has not filed any refund claim, claiming refund of amounts paid as customs duty. Hence, the argument advanced needs to be rejected at the first instance itself.
4.9 In view of the above, I do not find any merits in this appeal.
5.1 Appeal is dismissed.
(Order pronounced in open court on-25 March, 2026) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) akp