"CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL NEW DELHI PRINCIPAL BENCH-COURT NO. 4 EXCISE APPEAL NO. 50821 OF 2021 [Arising out of Order-in-Appeal No. 72(SM) CE/JPR/2021 dated 26.03.2021 passed by the Commissioner (Appeals), CGST, Jaipur] M/S RAJSHREE GLOBAL PVT LTD ……APPELLANT B-194, (A), RICCO Industrial Area Bhiwadi, Distt-Alwar Vs. COMMISSIONER(APPEALS), CGST- JAIPUR …….RESPONDENT A, Block, Surya Nagar, Alwar, Rajasthan Appearance: Present for the Appellant : None Present for the Respondent: Shri Rakesh Agarwal, Authorised Representative CORAM: HON'BLE DR. RACHNA GUPTA, MEMBER (JUDICIAL) HON'BLE MR. P. V. SUBBA RAO, MEMBER ( TECHNICAL ) FINAL ORDER NO. 51153 /2025 DATE OF HEARING : 02/07/2025 DATE OF DECISION : 07/08/2025 DR. RACHNA GUPTA 1. The present appeal has been filed to assail the Order-in- Appeal No. 72/2021 dated 26.03.2021. It was filed on 25.05.2021. Since then till date more than fifteen adjournments have been given but the appellant has been seeking adjournment on one or the other ground. Today also, none is present for the appellant and a written request seeking another adjournment has been forwarded. The said request is heavily objected by Ld. AR on behalf of the department in pressing upon that more than sufficient number of opportunities have already been given to the appellant. 2 E/50821/2021 2. We have perused the file it is observed that the department had submitted their written synopsis on September 21, 2023 itself. The appellant, however, has been seeking repeated adjournments citing personal difficulty or medical difficulty as the reason. On 06.05.2024 appellant requested three weeks’ time to submit the synopsis. It is thereafter that a fresh counsel got engaged by the appellant but still the appellant repeatedly requested for adjournment except on 25.11.2024 and 15.01.2025 when the adjournment was requested on behalf of the department. Finally on 26.05.2025 the following order was passed: “Learned counsel for the appellant has sought an adjournment on the ground of illness. Learned authorized representative appearing for the department points out that as many as 13 adjournments have already been taken by the appellant. List on July 2, 2025. 2. It is made clear that no further adjournment shall be granted to the appellant.” 3. In view of the said clarification and the absence of appellant today despite the said warning and clarification we refrain ourselves to adjourn the appeal any further. Relying upon the decision of Hon’ble Supreme Court in case of Balaji Re- Rolling Mills vs. Commissioner of Central Excise reported in 2014 (16) SCC 360 (SC), para 10 to 13 thereof, we hereby proceed to hear the submission on behalf of the department for deciding the appeal. 4. Ld. AR submitted that appellant had filed the refund claim dated 18.09.2019 seeking refund of interest of Rs. 51,59,786/- on the countervailing duty (CVD) and special Additional Duty 3 E/50821/2021 (SAD) paid by the appellant on the goods imported by it under the EPCG authorization. This refund application was rejected by the Assistant Commissioner by order dated 21.1.2019 which order was upheld by the Commissioner (Appeals) through the impugned order. It is submitted that duty including BCD, CVD, SAD & CESS was paid along with interest by the appellant as it had failed to fulfill the export obligations as per the EPCG Authorisation. Goods imported under the EPCG scheme are exempted from the whole of duty of customs subject to the condition that the importer fulfils its export obligation under the licence and if it fails to meet the obligations, it pays the duties not paid at the time of import along with interest. The appellant failed to fulfill its export obligations and hence paid the duty along with interest. 5. Had the appellant paid duty on the imported goods at the time of import, it could have availed CENVAT credit of the CVD and SAD so paid and could have used the CENVAT credit to pay excise duty on the goods manufactured by it. But the appellant paid CVD and SAD after the introduction of the goods and services tax in 2017 and the Central Excise Act, 1944 and the CENVAT Credit were no longer in the law. Interest on delayed payment of CVD and SAD, was, however, never admissible as CENVAT credit. 6. Rule 5.14 of Handbook of Procedure about regularization of bonafide default has also been referred by learned departmental 4 E/50821/2021 representative. With these submissions the appeal is prayed to be dismissed. Following decisions have been relied upon: (i) Rai Agro Industries Ltd. vs. Director General of Foreign Trade [2006(206)ELT 123 (Del.) (ii) K. Dhandapani & Co. Ltd. vs. Director General of Foreign Trade, New Delhi [2020 (373) ELT 368 (Mad.)[25-02-2020] (iii) Rexnord Electronics And Controls Ltd. vs. Union of India [2008 (224) ELT 184 (SC)] 7. Ld. AR impressed upon that the interest on the CVD and SAD paid after the introduction of GST is not admissible as CENVAT Credit. Accordingly, Show Cause Notice (SCN) bearing No. 18/2019-20 dated 11.11.2019 was issued to the appellant proposing the rejection of said refund claim. The proposal has rightly been confirmed vide order no. 64/2019-2020 dated 31.12.2019. It has been held that as CVD and SAD were paid post implementation of the Goods and Service Tax regime, the appellant could not avail CENVAT credit of the interest paid on the CVD and SAD. The transitional provisions under CGST Act do not talk about refund of any interest paid after 01.07.2017. Ld. AR submitted that there is no infirmity in the said findings. The appeal filed there against is, accordingly, prayed to be dismissed. 8. Having heard the learned departmental representative and perusing the facts and the grounds of appeal filed by the appellant and the entire record of the appellant it is observed and held as follows. 5 E/50821/2021 9. M/s Rajshree Global Private Limited, the appellant herein, imported capital goods without payment of customs duty against EPCG authorization number 023 000 6190 dated 05.01.2011 by Bill of Entry No. 266 57 63 dated 18.01.2011. The appellant, however, could not fulfill the export obligation within the prescribed time limit. As per the Foreign Trade Policy, in case of such failure, the appellant was required to pay the foregone Customs Duty along with interest. Resultantly the customs duty (BCD, CVD, SAD and CESSES) amounting to Rs. 42,99,823/- along with the interest amounting to Rs. 51,59,786/- was paid by the appellant on 29.01.2019. Thus, the duty was paid after a delay of eight years of the date of import. The appellant filed refund claim of amount of interest amounting to Rs. 51,59,786/- on 18.9.2019 citing section 142 (6)(a) of GST ACT, 2017 read with Section 11B of the Existing/Erstwhile Central Excise Act, 1944. The refund claim was proposed to be rejected vide show cause notice No. 18/2019-20 dated 11.11.2019, the proposal was initially confirmed vide Order-in-Original No. 64/2019-20 dated 31.12.2019. The appeal against the said order has been dismissed vide aforesaid Order in Appeal dated 26.03.2021. Being aggrieved the present appeal was filed. 10. We observe that the said payment of CVD/BCD with interest was, however, made by the appellant after implementation of CGST Act, 2017. The appellant would have otherwise been entitled to claim CENVAT credit of CVD and SAD but not of interest paid on them. 6 E/50821/2021 11. However, the present refund claim of Rs. 51,59,786/- dated 18.09.2017 is not the claim for the amount of duty paid by the appellant. But it is the claim for the amount of interest as was paid along with the customs duty paid later when appellant failed to fulfill the export obligations with in the prescribed limit. The refund is claimed in terms of section 142 of Central Goods & Service Tax, 2017. 12. We have perused Section 142 of GST Act, with sub- section (3) thereof reads as follows:- “(3) Every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him 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 of the Central Excise Act, 1944:” Provided that where any claim for refund or CENVAT credit is fully or partially rejected, the amount so rejected shall lapse. Provided further that no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act. and sub-section (8) (a) and (b) reads as follows:- “(8) (a) where in pursuance of an assessment or adjudication proceedings instituted, whether before, on or after the appointed day, under the existing law, any amount of tax, interest, fine or penalty becomes recoverable from the person, the same shall, unless recovered under the existing law, be recovered as an arrear of tax under this Act and the amount so covered shall not be admissible as input tax credit under this Act; (b) where in pursuance of an assessment or adjudication proceedings instituted, whether before, on or after the appointed day, under the existing law, any amount of tax, interest, fine or penalty becomes 7 E/50821/2021 refundable to the taxable person, the same shall be refunded to him in cash under the said law, notwithstanding anything to the contrary contained in the said law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 and the amount rejected, if any, shall not be admissible as input tax credit under this Act.” 13. In view of the foregoing provisions of CGST Act, 2017; the refund has to be sanctioned in terms of existing law i.e. Central Excise Act, 1944 as per section 2 (48) of CGST Act, 2017 and the amount actually accruing to be assessee has to be paid in cash. Section 11B of the said Act governs the claims for refund. It reads as follows: “Section 11B. Claim for refund of duty and interest, if any, paid on such duty . - Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such [duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person :’ 14. Section 174(1) of the CGST Act further provides that save as otherwise provided in this Act, on and from the date of commencement of this Act i.e. 01.07.2017, the Excise Act and some other Acts referred to are repealed, however, without affecting certain things/ situations as mentioned in the section. It reads as follows: 8 E/50821/2021 “Section 174 of CGST Act, 2017 is cited below: 174. (1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, the Additional Duties of Excise (Goods of Special Importance) Act, 1957, the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, and the Central Excise Tariff Act, 1985 (hereafter referred to as the repealed Acts) are hereby repealed. (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (hereafter referred to as “such amendment” or “amended Act”, as the case may be) to the extent mentioned in the sub-section (1) or section 173 shall not— (a) xxxxxxxxxx (b) affect the previous operation of the amended Act or repealed Acts and orders or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repealed Acts or orders under such repealed or amended Acts: Provided that any tax exemption granted as an incentive against investment through a notification shall not continue as privilege if the said notification is rescinded on or after the appointed day; or (d)xxxxxxxxxxxxxxxx (e)xxxxxxxxxxxxxxxx (f)affect any proceedings including that relating to an appeal, review or reference, instituted before on, or after the appointed day under the said amended Act or repealed Acts and such proceedings shall be continued under the said amended Act or repealed Acts as if this Act had not come into force and the said Acts had not been amended or repealed.” In view of above, the right of notice to claim refund under Central Excise Act, 1944 are not affected and refund is admissible. From a conjoint reading of sub section (3) (5) and (8A) of Section 142 of the CGST Act it is evident that that an assessee is entitled to claim refund of CVD and SAD paid after the appointed day, under the existing law, and such claim has to be disposed of according to the provisions of the existing law. As the appellant was which is now no longer available due to implementation of GST regime, it is held that they are entitled to refund of the said amount. 9 E/50821/2021 15. A joint reading of all the above quoted provisions make it clear that a refund claim irrespective of whether it is filed before or after coming into effect of the CGST Act, 2017 of any amount of CENVAT, tax, duty, interest or any other amount shall not get affected by the CGST Act that the same has accrued to assessee under existing law i.e. under the Central Excise Act, 1944. The accrued amount & refund thereof shall be disposed of in terms of existing law and the eligible amount should be refunded in cash. Section 11B of Central Excise Act, 1944(existing law) deals with refund of amount of duty and interest too provided assessee has been eligible for the said claim and the amount shall have accrued to the asseseee either for the reason that amount of duty/ interest was paid under mistake or the payment was in excess paid without any kind of liability of assessee to pay the same. 16. Reverting to the facts of present case, we observe that the present refund claim is the claim for amount of interest as was paid along with amount of CVD + SAD after the appellant failed to fulfill the export obligations of the authorization under which the impugned goods were imported duty free. Delay in payment of duty statutorily invites the liability to pay interest. The duty paid was eligible for availment of CENVAT credit as per Rule 3 of CENVAT Credit Rules, 2004. The rule does not allow credit on the amount of interest paid along with duty. Hence, under section 142 of CGST Act, the credit of CVD/SAD paid was refundable in cash since it was available under existing law. But 10 E/50821/2021 amount of interest paid never accrued to the appellant under existing law, the appellant was never eligible for said amount. Hence, the refund thereof is not permissible even under section 142 of CGST Act. 17. In the light of the entire above discussion, we find no infirmity in the order under challenge when the refund claim is rejected. Resultantly, we uphold the said order, consequently thereto the appeal is hereby dismissed. (Order pronounced on 07/08/2025) (DR. RACHNA GUPTA) MEMBER (JUDICIAL) (P. V. SUBBA RAO) MEMBER ( TECHNICAL ) Tejo "