14.03.2022 – Limitation prescribed under Section 11B is not applicable for the refund filed after introduction of GST, assessment includes self-assessment – Refund Allowed – CESTAT, Delhi

The Hon’ble CESTAT, Delhi vide its order dated 11 February, 2022 in the matter of M/s Jai Mateshwaari Steels Pvt. Ltd. Vs. Commissioner, CGST – Dehradun in Service Tax Appeal No. – 50407 of 2021, held that the limitation as provided under section 11B would not be applicable for the refund filed on 07th March 2019 for the CENVAT Credit lying as on 30th June 2017 and the assessment includes self-assessment made by the assessee.

Facts:The Appellant filed a refund claim on 7th March 2019 for the balance of CENVAT credit lying on 30 June 2017.  The aforesaid refund claim was rejected by the respondent firstly on the ground of limitation as prescribed under Section 11B and secondly on the ground that the refund is arising out of self-assessment and assessment does not include self-assessment, thus cannot be entertained as per Section 142 (8) (b).

Held:

  • The Hon’ble CESTAT after considering the submissions from the both sides and referring to Rule 2(b) of Central Excise Rules, 2002 relied on behalf of the appellant held that the first objection for refund i.e. ‘assessment does not include self-assessment’ is bad and against the provisions of law.
  • The Hon’ble Bench thereafter taking note of the law stated in Section 142 (3) & Section 142 (8) of CGST Act, 2017 observed that Section 142 (3) provides that ‘after the appointed day (30th June 2017) every claim for refund of any duty, tax, interest, etc., under the existing law shall be disposed of in accordance with the provisions of the existing law and any amount eventually accruing to him (assessee) 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 (unjust enrichment) of Central Excise Act.’
  • It was also observed Section 142 (8)(b) provides for disbursement of any refund arising pursuant or adjudication proceedings, except sub clause (2) of 11B which deals with unjust enrichment.
  • Thereafter considering the facts of the case held that limitation of one year as prescribed under Section 11B would not be applicable to the refund due to overriding effect of CGST Act and the appellant is entitled to refund under Section 142 (3) & Section 142 (8) of the CGST Act.

The Hon’ble CESTAT, Delhi with the above findings allowed the appeal filed by the appellant and set aside the impugned order directing the respondent to disburse the refund along with interest under Section 11BB within 45 days of the receipt of the order on the adjudicating authority.

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