"CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL CHANDIGARH REGIONAL BENCH - COURT NO. I Service Tax Appeal No. 60376 of 2023 [Arising out of Order-in-Appeal No. CHD-EXCUS-001/LDH/APPL/83/2022-23 dated 22.03.2023 passed by the Commissioner (Appeals), CGST, Chandigarh] M/s Asianlak Health Food Ltd VPOJandiali, Chandigarh Road, Near Kohara, Ludhiana Punjab 141112 ……Appellant VERSUS Commissioner of CE & ST, Ludhiana Central Excise House, Ludhiana Punjab 141001 ……Respondent APPEARANCE: Shri Pawan K.Pahwa Advocate and Shri R.R. Yadav, Consultant for the Appellant Ms. Amita Gupta and Shri Yashpal Singh, Authorized Representatives for the Respondent CORAM: HON’BLE MR. S. S. GARG, MEMBER (JUDICIAL) FINAL ORDER NO. 61038/2025 DATE OF HEARING: 11.08.2025 DATE OF DECISION:10.09.2025 The present appeal is directed against the impugned order dated 22.03.2023 passed by the Commissioner (Appeals), CGST Chandigarh, whereby the Commissioner (Appeals) has rejected the appeal of the appellant and upheld the Order-in-Original rejecting the refund of Cenvat credit. 2. Briefly the facts of the present case are that the appellant is engaged in the provision of certain taxable services, including ST/60376/2023 2 services liable to tax under the Reverse Charge Mechanism (RCM) such as Goods Transport Agency (GTA) Services, Legal Services Security Services and services provided by the Government to business entities, and was duly registered with the Service Tax Department vide Registration No. AABCA5297MST001. 2.2 An audit of the appellant was conducted by the Department on 15.11.2017 and 18.11.2017 for the financial years 2013-14 to 2016- 17, wherein certain discrepancies were noticed with regard to the payment of service tax under RCM. The appellant, pursuant to the audit findings deposited Rs. 8,55,338/ towards service tax under Reverse Charge Mechanism. As per the appellant, they are entitled to avail credit of service tax paid under RCM pursuant to audit findings. The said credit however remained un-availed due to transition to the goods and service tax, (CGST regime); thereafter the appellant filed a claim for refund of service tax paid under RCM. After following the due process, the adjudicating authority vide order dated 09.03.2020 rejected the refund claim on the ground that erstwhile provision did not contain any provision permitting refund of service tax paid under RCM. Aggrieved by the said order dated 09.03.2023, the appellant preferred an appeal before the Commissioner (Appeals) who dismissed the same vide the impugned order dated 22.03.2020. Hence, the present appeal. 3. Heard both the parties and perused the material on record. 4. The learned counsel for the appellant submits that the impugned order denying the refund of service tax under RCM is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submits that at no ST/60376/2023 3 stage during the proceedings did the department dispute the appellant’s eligibility to avail credit of service tax paid under RCM. He further submits that the appellant under the applicable credit provision of existing law is entitled to such credit and therefore, they are entitled to refund of the service tax paid under RCM under Section 142(3) of the CGST Act, 2017 which mandates that claim for refund filed after the appointed day for any amount paid under the existing law shall be disposed of in accordance with the provisions of the erstwhile law and any amount found admissible shall be refunded in cash. The learned counsel further submits that reliance placed by the department on the judgment in the case of M/s Rungta Mines Ltd. Vs. Commissioner of CGST & Central Excise, Jamshedpur 2022 (67) G.S.T.L. 180 (Jhar.) and M/s Max Specialty Films Ltd. Vs. Commissioner of CGST & Central Excise 2025(2) (TMI) 1111-CESTAT Chandigarh is wholly misconceived and not applicable to the facts of the present case. Learned counsel further submits that the decision in the case of M/s Rungta Mines Ltd. was rendered in a fact-situation where the assessee sought refund of Cenvat credit of service tax paid during the pre-GST regime in case, despite not having: a) Claimed such credit in their last ER-1 return under the existing law, and b) Availed transition of the said credit under Section 140 of the CGST Act. 2017. 4.2 He further submits that in the present case factual matrix is different than the case M/s Rungta Mines Ltd and Max Specialty Films Ltd. He further submits that Max Specialty Films Ltd. Merely ST/60376/2023 4 follows the ratio of Rungta Mines Ltd. The learned counsel has relied upon the following decisions which have distinguished the Rungta Mines Ltd cited (Supra) and as applicable in the following cases:  M/s RR Donnelley India Outsource Pvt. Ltd. Vs. Commisioner of GST & Central Excise, Chennai 2024 (10) TMI 383-CESTAT, Chennai.  M/s Asiatic Drugs & Pharmaceuticals Pvt. Ltd. Vs. Commissioner, CGST, Alwar (Rajasthan) 2025 (5) TMI 1127-CESTAT, New Delhi(DB).  M/s Rieter India Pvt. Ltd. Vs. Commissioner of Central Tax, Kolhapur 2025 (7) TMI 554-CESTAT Mumbai. The leaned counsel further submits that some of the decisions cited (Supra) have been rendered by the Division Bench of the Tribunal and has a binding precedential value. He further submits that the Tribunal should invoke the Doctrine of Necessity in the present case to direct grant of refund under Section 142(3) of CGST, Act 2017 and render complete justice to the appellant. 4.3 The learned counsel also refer to the some of the decisions wherein the Hon’ble Supreme Court and various High Courts have, in a catena of judgements, acknowledged that where the exigencies of the situation leave no lawful alternative, the doctrine permits actions otherwise impermissible, provided such actions are bona fide, proportionate to the necessity and accordingly directed the protection of larger public interest or the preservation of the integrity of legal and administrative systems. 5. On the other hand, learned authorized representative reiterated the findings of the impugned order and further submits that there was no provision under the existing law to grant refund of credit in respect of service tax paid under RCM and the provision ST/60376/2023 5 under Section 142(3) is quite clear that unless the refund of any such input credit is otherwise eligible under the existing law, the same cannot be considered for refund in cash in terms of provision of Section 142(3). He also points out that there is a clear cut provision under the Act for claiming such credit by way of revised return or by carrying forward the said amount of Cenvat credit relying in balance relating to the period immediately proceeding the appointing day. However, the same is subject to certain restrictions including the specified eligible duties and taxes etc. in respect of which the credit can be carry forward. 5.2 He further submits that in the present case, it is admitted fact that the appellant had not carry forward any credit of such tax using the provision under Section 140. The learned authorized representative further submits that this Tribunal in the case of Max Specialty Films Ltd cited (Supra) considered the various decisions cited by both the parties; he further submits that the decisions of the Max Specialty Films Ltd is squarely applicable in the present case wherein the Tribunal after considering the decision of the Jharkhand High Court in the case of M/s Rungta Mines Ltd cited (Supra) and other decisions has held that the assessee is not entitled to claim the refund under Section 142(3) of the said act. In support of his submissions, he relied upon the following decisions:  Jharkhand High Court decision in the case of Rungta Mines Limited [Order dated 15.02.2022]  CESTAT Bangalore order dated 28.03.2023 in the case of M/s. Systems Advisors Software Services Pvt Ltd  CESTAT Hyderabad decision dated 31.07.2024 in the case of M/s. M/s JSW Cement Ltd. ST/60376/2023 6  CESTAT Hyderabad decision dated 31.07.2024 in the case of M/s. M/s CAD Vision Engineers Pvt Ltd  CESTAT Allahabad decision dated 15.10.2024 in the case of M/s Bajaj Carpet Industries Ltd  CESTAT Hyderabad decision dated 11.09.2024 in the case of M/s. Laurus Labs Ltd  CESTAT, Mumbai order dated 03.02.2023 in the Excise Appeal No. 85160 of 2020 in the case of M/s. Galaxy Surfactants Ltd  CESTAT Hyderabad decision dated 25.04.2024 in the case of M/s. Cyient Limited.  CESTAT, Chennai decision in the case Servo Packaging Ltd. -2020(373)ELT 550 (Tr-Chennai)  CESTAT Hyderabad decision dated 04.09.2024 in the case of M/s. M/s NACL Industries Ltd..  CESTAT Mumbai decision dated 20.02.2024 in the case of M/s Swati Menthol & Allied Chemicals Ltd 6. I have considered the submissions of both the parties and perused the material on record, I find that the only issue involved in the present case is whether the appellant is entitled for refund in cash in respect of the service tax paid by the appellant under RCM in view of the provision under Section 142(3) read with Section 174(2)(c) of the CGST, Act, 2017. Further, I find that it is not the dispute that the service tax was paid when the audit raised the objection after the coming into force of GST with effect from 01.07.2017. As per the appellant, they are entitled for cash refund as their right of refund has been protected under Section 174(2)(C) ST/60376/2023 7 of CGST, Act. For this submission also, the learned counsel for the appellant has relied upon the various decisions cited (Supra). 7. On the other hand, learned authorized representative has also relied upon the certain decisions cited (Supra), where identical issue has been discussed and decided by various Benches of Tribunal including the CESTAT Bench, Chandigarh in the case of M/s Max Specialty Films Ltd. cited (Supra). Further, I find that the learned counsel for the appellant has tried to distinguish the decision rendered by the Jharkhand High Court in the case of M/s Rungta Mines Ltd cited (Supra) as well as M/s Max Specialty Films Ltd. cited (Supra) decided by this Tribunal but in my view, the decision in the case of M/s Max Specialty Films Ltd. cited (Supra) is squarely applicable, wherein this Tribunal has also relied upon the decision of other Tribunal mainly CESTAT Hyderabad in the case of C A D Engineering Pvt. Ltd. Vs. Commissioner of Customs & Central Tax cited vide Final Order No. A/30289 decided on 30.04.2024 in which identical issue has been raised and decided by considering the various decisions of the Tribunal as well as the High Court of Jharkhand in the case of M/s Rungta Mines Ltd. 8. Here, it is pertinent to refer to the relevant paras of the said order which is reproduced here in below: “10. It is pertinent to refer to the relevant paras of the said order which is reproduced here in below: 9. At the very outset, it is to be understood that after the introduction of GST Laws with effect from 01.07.2017 certain transitional provisions were made so as to ensure that certain provisions of the existing law are further carried forward and claims, liability etc., under the existing laws were to be disposed off in terms of provisions made in ST/60376/2023 8 the Act. In so far as it relates to refund of cenvat credit, there are apparently three options available post introduction of GST Laws. Firstly, under Section 140 where specific and eligible cenvat credits under existing law were entitled for being carried forward under the new regime and to be taken as credit in their electronic ledger under the Act, subject to provisions under the relevant rules and procedures. The second provision was in terms of Section 142(3) and third under Section 142(9)(b). A plain reading of the provisions would indicate that, interalia, refund of any amount of tax or cenvat credit has to be disposed off in accordance with the provisions of the existing law and any amount eventually accruing to him shall be refunded to be paid in cash only, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of Sub-section 2 of Section 11B. Therefore, it is obvious that refund has to be examined first in terms of the relevant provisions, as it existed under the existing law, in this case Cenvat Credit Rules, 2004 or the Finance Act 1994. 10. The perusal of CCR under the existing law clearly brings out that the refund of unutilized cenvat credit can be made only for specific purpose under Rule 5, 5SA and SB, subject to certain prescribed/notified procedure, conditions and limitations etc., as may be specified or notified by notification. Also, it is obvious that there is no provision for refund of CENVAT credit either under CCR 2004 or Finance Act 1994 for service tax paid correctly, which in any case has not been disputed by the appellant. They have also admittedly not filed any revised ST-3 within the specified tax limit as would have been otherwise required under Section 142(9)(b). 11. Therefore, it is obvious that the nature of refund being sought in this case would not get covered in any one of these situations when there is no provision for refund of ST/60376/2023 9 such cenvat credit or tax under existing law and I find much force in the argument of the Learned DR that Section 142(3) in itself is not a statutory provision for grant of refund, per se, as this is nothing but only an enabling Section for grant of refund, albeit in cash, notwithstanding certain provisions to the contrary in the Section 118 except relating to undue enrichment. Therefore, in this case, since the refund would not have been available under the provisions of the existing law, the same cannot be processed and allowed under Section 142(3) also and therefore refund of the tax or credit in respect of service tax paid under reverse charge mechanism for import of service after the appointed date would not be admissible to the appellant under the provisions of Section 142(3). 12. I have also perused the citations relied upon by the appellant in the case of BHEL. The Hon'ble Tribunal was dealing with the matter of grant of refund in cash in respect of certain \"cesses\", which is not the case here and therefore it is distinguishable. Moreover, as pointed out by Learned DR the said Order of the Hon'ble Tribunal has been stayed by Hon'ble High Court of Madhya Pradesh. The other citations relied upon are in relation to substantive right to claim input credit. However, I find that these judgments are in relation to the cenvat credit and it's admissibility under the erstwhile CCR and not in relation to the entitlement of refund under Section 142 of the Act. Moreover, as pointed out by the Learned DR, Division Bench of CESTAT, Hyderabad, in the case of CCE, Tirupati Vs Rani Plastic Pipe Industries [2020 (6) TMI 356-CESTAT, Hyd] has held that there is no provision in the CCR for refund of cenvat credit if the assessee is not able to utilize it for any other purpose, such as factory being closed and that it was also held that the Larger Bench of Hon'ble High Court of Bombay had held that no refund can be sanctioned under Section 118 if the assessee is unable to utilize cenvat credit on account of closure of manufacturing activities. ST/60376/2023 10 Similar view was also held by the Division Bench of CESTAT in the case of Finex Industries Pvt Ltd., Vs CCE, which also examined, interalia, the Judgments in the case of Union of India Vs Slovak India Trading Co. Pvt Ltd., [2006 (201) ELT 559 (Kar)) and Union of India Vs Slovak India Trading Co. Pvt Ltd., [2008 (223) ELT A 170 (SC)]. 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 Vs CCE [2018 (91) TMI 1064], 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 Vs. CCE, Jamshedpur [2022-TIOL-252-HC-Jharkhand-GST]. 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: ST/60376/2023 11 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 ile on 01.07.2017 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 an eligibility condition to claim refund but is only a ST/60376/2023 12 condition which governs refurid 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.” 9. Further, I find that the issue involved in the present case is squarely covered in favour of the Revenue by the decision of this Tribunal in the case of M/s Max Specialty Films Ltd. and the decision of the Jharkhand High Court in the case of M/s Rungta Mines Ltd. cited (Supra) and by following the said ratio, I hold that there is no ST/60376/2023 13 infirmity in the order passed by the learned commissioner (Appeals) upholding the Order-in-Original and rejecting the refund claim in cash filed by the appellant. 10. Accordingly, the present appeal is dismissed being devoid of any merit. (Order pronounced in the open court on 10.09.2025) (S. S. GARG) MEMBER (JUDICIAL) Kailash "