Page 217 - ELT_15th August 2020_Vol 373_Part 4

2020 ] SERVO PACKAGING LTD. v. COMMR. OF GST AND C. EX., PUDUCHERRY 551

left with no option to claim the above credit under the CENVAT Credit Rules
with also no scope to report the same under Transitional Credit while migrating
to GST, the refund in cash was claimed under Section 142(3) ibid.
3. The Adjudicating Authority vide communication dated 6-6-2019 af-
ter considering the contentions of the appellant insofar as refund was concerned,
intimated that the refund claim of the assessee of Customs Duty (i.e., CVD and
SAD) which were legitimately payable, having been paid for non-fulfilment of
the conditions of import under Advance Licence, was not covered under Section
142 ibid and consequently, the refund was rejected. Aggrieved, the assessee pre-
ferred an appeal before the Commissioner of GST and Central Excise
(Appeals-I), Chennai, who vide impugned Order-in-Appeal No. 326/2019 (CTA-
I), dated 17-10-2019 upheld the rejection. Consequently, the present appeal is
filed before this forum.
4. When the matter was taken up for hearing, Shri V. Ravindran, Ld.
Advocate, appeared for the assessee-appellant and Ms. Sridevi Taritla, Ld. Joint
Commissioner (Authorized Representative), appeared for the Revenue-
respondent.
5. Ld. Advocate for the appellant reiterated the grounds and conten-
tions urged before the lower authorities. He also submitted that when the import
was made and the applicable duty was paid, the same would tantamount to a
normal import and hence, the Cenvat credit would remain available. He also re-
lied on the following decisions of various Benches of the Tribunal :
(i) T2S Software Solutions Pvt. Ltd. v. Commr. of G.S.T. & Central Excise
[2019 (7) T.M.I. 1299 - CESTAT, Chennai];
(ii) Rawalwasia Ispat Udyog Pvt. Ltd. v. C.C.E., Panchkula [2019 (7) T.M.I.
1242 - CESTAT, Chandigarh = 2019 (26) G.S.T.L. 196 (Tri.-Chan.)];
(iii) JMT Consultant Detailing Pvt. Ltd. v. Commr. of Central Tax, Bengaluru
East [2019 (12) T.M.I. 648 - CESTAT, Bangalore];
(iv) German Remedies Ltd. v. C.C.E., Goa [2004 (177) E.L.T. 539 (Tri. -
Del.)]
6.1 Per contra, Ld. Authorized Representative for the Revenue support-
ed the findings of the lower authorities. Ld. Authorized Representative also
pointed out that by Advance Authorization, the appellant was permitted to im-
port without payment of duty which the assessee has done, but the same was
subject to the condition of fulfilling export obligation of the final product; that
the appellant having not fulfilled the said obligation, the same has rightly suf-
fered Customs duty because of the duty free import.
6.2 With regard to the cases relied on by the assessee, she would sub-
mit that the decisions are on refund per se under Rule 5 of the CENVAT Credit
Rules, 2004 and hence, the same ratio is not applicable to a refund of duty arising
on account of non-fulfilment of export obligation under Advance Authorization.
7. In rejoinder, Ld. Advocate would submit that the Advance Licence
was always renewed and there is no finding by the lower authorities as regards
the lapse of the period prescribed for export. Moreover, he would submit, that
the appellant had voluntarily paid the Customs Duty because the appellant did
not get export order and the voluntariness has never been questioned by the
lower authorities.

EXCISE LAW TIMES  15th August 2020  217