Rungta Mines Limited Vs Commissioner of Central Goods & Services Tax and Central Excise (Jharkhand High Court)
In the instant case, as per the case of the petitioner, the entire problem has cropped up due to non-receipt of the invoice in original from the port authorities although the port services were availed and payments for the same to the port authorities were made by the petitioner in the month of April 2017, the invoice was generated by the port authorities in the month of May 2017 but the original invoice was received by the petitioner only on 20.09.2017 i.e after coming into force of CGST Act. The late receipt of the invoice is essentially between the petitioner and the port authorities and the tax collecting authorities had nothing to do in the matter. Certainly, the delay in receipt of original invoice is not attributable to the respondent authorities under the existing law or under the new law.
The authorities have held in the impugned orders that in the instance case, the timeline for claiming CENVAT Credit qua the service tax paid on port services was not followed by the petitioner, although the services were availed, the entire payment was made and the bill was also generated in the month of April/May, 2017. Further, it has also been held in the impugned orders that the petitioner not only failed to claim the CENVAT Credit as per law, but illegally claimed the credit of the same while filing service tax return although the petitioner was not entitled to do so as the petitioner was not registered as a service provider. The authorities have also held that the service tax paid on port service was not eligible for refund under the existing law as the said services were not utilised for export. Thus, the petitioner on the one hand did not claim CENVAT Credit as per the procedure established by law under the existing law and on the other hand violated the provisions of law while filing his service tax returns and claimed the amount as input service and thereafter filed his petition for refund on 28.06.2018 referring to Section 142(3) of the CGST Act. The petitioner never had a right to claim refund under the existing law and had failed to exercise their right to claim CENVAT Credit as per law and wrongly claimed the impugned amount as credit in Service Tax Return (S.T. 3 return).
In view of the aforesaid findings, I do not find any reason to interfere with the findings and reasons assigned by the adjudicating authority as well as the appellate authority rejecting the application for refund filed by the petitioner under section 11B of Central Excise Act read with Section 142(3) and 174 of CGST Act. The impugned orders are well reasoned orders calling for no interference. Accordingly, this writ petition is dismissed.
FULL TEXT OF THE JUDGMENT/ORDER OF JHARKHAND HIGH COURT
1. Heard Mr. K. Kurmi, learned Advocate appearing on behalf of the petitioner along with Mr. Nitin Kumar Pasari and Ms. Sidhi Jalan, Advocates.
2. Heard Mr. Amit Kumar, learned counsel appearing on behalf of the respondents.
3. The present writ petition has been filed for following reliefs: –
a. For setting aside the order in Appeal dated 03.2.2020 (Annexure-1) passed by the appellate authority, i.e. the Respondent No.2.
b. For setting aside the order in Original dated 25.1.2019 (Annexure-2) passed by the adjudicating authority i.e. the Respondent No. 3.
c. For setting aside the show-cause notice bearing dated 24.7.2018, issued by the adjudicating authority proposing to reject the refund application of the petitioner of CENVAT Credit of Rs. 10,88,328/-.
d. For a relief of refund of CENVAT Credit of the aforesaid amount of input service credit in terms of transitional provision under Section 142(3) of Central Goods and Service Tax Act, 2017 read with Section 11-B of Central Excise Act, 1944 and Rule 2(l) and Rule 3 of the CENVAT Credit Rules, 2004.
4. The following are the foundational facts for filing of the present writ petition: –
