2019 ACR 771 CESTAT Hyderabad
Single Member Bench - Court – I
Aditya Steel Rolling Mills Pvt Ltd.,
Vs
Commissioner of Central Tax, Visakhapatnam GST
Hon’ble Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL)
EXCISE APPEAL No. 30502 of 2019 Final Order A/31110/2019 dated 06.12.2019
(Arising out of Order-in-Appeal No. VIZ-EXCUS-001-APP-074-19-20 dated 13.09.2019 passed by Commissioner of Customs & Central Tax (Appeals), Guntur)
Note –
As far as issue of appropriation of the amount to be refunded under Central Excise Act towards amounts allegedly due under Section 79(1)(a) of CGST Act is concerned, this Tribunal has no jurisdiction over any decision under the CGST Act. Transitional provisions provide for transfer of CENVAT credit and refund of duty, etc., from the excise or service tax to the GST have been made under the CGST Act and not under the Excise Act or Service Tax Act. Therefore, decisions pertaining to the transitional provisions are decisions under the CGST Act which the officers are fully competent to take but this Tribunal is not competent to decide appeals against.
Further, this adjustment is contested by the appellant on the ground that the amount was not due under the realm of CGST Act. A decision as to whether the amounts are due or otherwise falls under the CGST Act which can also not be decided by this Tribunal. Under the CGST Act, there is a provision for GST Appellate Tribunal to hear appeals against such decisions.
Present:
Shri N.V. Ramana Rao, Advocate for the appellant.
Shri A. Rangadham, Superintendent for the Respondent.
ORDER
[ORDER PER: MR. P. VENKATA SUBBA RAO]
- This appeal is filed against the Order-in-Appeal No. VIZ-EXCUS-001- APP-074-19-20 dated 13.09.2019.
- The appellant had, during the course of an investigation against them, paid some amounts through their CENVAT credit. Thereafter, they succeeded in the matter before the Commissioner (Appeals). Hence, they filed a refund claim for the amount of Rs. 2,20,444/- paid during the investigation before the Deputy Commissioner along with a claim for interest. The Deputy Commissioner, by his Order-in-Original no. 29/2018- 19(R) dated 30.08.2018
(a) sanctioned an amount of Rs. 2,20,444/- to the appellant under section 11b of the Central Excise Act and
(b) appropriated the entire amount against amounts due and recoverable by the Department under section 79(1)(a) of the CGST Act, 2017.
Aggrieved, the appellant appealed before the First Appellate Authority who, by the impugned order, upheld the Order-in-Original in its entirety and rejected the appeal. Hence, this appeal. Learned Counsel for the appellant submits that although they have been sanctioned refund as they are entitled to, they are aggrieved on two counts.
(a) Adjustment of the refunded amount towards an amount allegedly recoverable under section 79(1)(a) of CGST Act, 2017 is not correct as there is no such recoverable amount against which such adjustment could have been made.
(b) There is no finding either by the original authority or by the First Appellate Authority on their claim for interest refund under section 11BB of Central Excise Act, 1944.
He therefore prays that on both these matters, the matter may be decided in their favour and the impugned order may be set aside with consequential relief.
- Learned Departmental Representative supports the findings of the lower authorities and submits that the present case is one where the cause of action and the claim for refund had arisen out of the Central Excise Act, 1944 but the subsequent appropriation of the amount has been made under the provision of CGST Act under which this Tribunal has no jurisdiction.
- Learned DR also explained that although the amount was paid through their CENVAT account, invoking the provisions of the CGST Act (142(3)), the refund has been sanctioned to the appellant in cash.
- I have considered the arguments both sides and perused the records. The appellant in this case is aggrieved by two aspects of the impugned order
(i) that they have not been sanctioned interest on the refund amount
(ii) that the refund amount has been wrongly adjusted against amounts allegedly due under the CGST Act. According to the appellant, the amount was not due under the CGST Act and therefore, such adjustment was incorrect.
6. As far as the issue relating to the interest is concerned, I find that there is no specific finding either in the Order-in-Original or in the Order-in- Appeal as to whether the appellant is entitled to the interest on refund under section 11BB or otherwise with the reasons. Therefore, I find it a fit case to be remanded to the original authority for this purpose only. As far as the second issue of appropriation of the amount towards amounts allegedly due under CGST Act is concerned, this Tribunal has no jurisdiction over any decision under the CGST Act. Transitional provisions for transfer of CENVAT credit and refund of duty, etc., from the excise or service tax to the GST have been made under the CGST Act and not under the Excise Act or Service Tax Act. Therefore, decisions pertaining to the transitional provisions are decisions under the CGST Act which the officers are fully competent to take but this Tribunal is not competent to decide appeals against. Further, this adjustment is contested by the appellant on the ground that the amount was not due under the realm of CGST Act. A decision as to whether the amounts are due or otherwise falls under the CGST Act which can also not be decided by this Tribunal. Under the CGST Act, there is a provision for GST Appellate Tribunal to hear appeals against such decisions. Therefore, without passing any remark on the appropriation of the amount towards amounts said to be under the CGST Act, I remand the matter to the original authority for limited purposes of giving specific finding on the admissibility of the interest on the amount of interest claimed by the appellant. The appeal is allowed by way of remand to the original authority as above.
(Dictated and pronounced in open court)