2021-VIL-522-CESTAT-CHE-ST

SERVICE TAX CESTAT Cases

Service Tax - Refund of service tax - assessee is engaged in manufacture and export of mining machineries - During relevant period, appellant's premises were visited by Audit Officers and it was noticed that appellant received services from their parent company situated in USA - Appellant was liable to pay service tax on amount paid to parent company under Reverse Charge Mechanism - Appellant paid amount along with interest - However, since period was after 01.07.2017, consequent to implementation of CGST Act, 2017, appellant was unable to avail credit and utilize credit - Appellant also was unable to transfer credit to TRAN-1 credit, as date of filing TRAN-1 had expired - Appellant filed refund claim - Original authority rejected refund claim holding that as per Section 142 (8) (a) of the CGST Act, 2017, credit was not admissible - Commissioner (Appeals) upheld order of original authority – assessee in appeal – HELD – the provisions of Section 142(8) of the CGST Act, 2017 deals with recovery of arrears under the erstwhile law after implementation of CGST Act, 2017. In the present case, there is no assessment / adjudication tax as contemplated under the provisions of the erstwhile law - appellant has paid tax as pointed out by Audit Officers and such payment does not fall under recovery of arrears of tax by an assessment or adjudication proceedings - Section 142(3) of CGST Act, 2017 says that refund claims of any amount paid under erstwhile law have to be disposed according to provisions of erstwhile law and amount has to be paid in cash - Appellant has paid tax under erstwhile law - In instant case claim is only for refund and not proceedings for assessment or adjudication - In such a scenario section 142(3) of CGST Act, 2017 will be attracted - Rejection of refund claim by referring to Section 142 (8) of CGST Act, 2017 is misplaced - Assessee’s appeal is allowed

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