This appeal has been filed by M/s. Molex (India) Pvt. Ltd., C-7 & 8, GIDC Electronic Estate, Section 25, Gandhinagar [hereinafter referred to as “appellant” [against Order-in-Original No. 23/Ref/CEX/NK/2018-19, dated 19-6-2018 [hereinafter referred to as “impugned order”] passed by the Assistant Commissioner of CGST, Gandhinagar Division, Gandhinagar [hereinafter referred to as “adjudicating authority”].

2. Briefly stated, the fact of the case is that the appellant has filed a refund claim of ₹ 1,93,866/- under the provisions of Section 142(9)(b) of Central Goods and Services Tax Act, 2017 [CGST Act]. The backgrounds for filing the said refund claim is that the appellant had filed original ER-1 return for the month of June, 2017 on 10-7-2017 and carried forward an amount of ₹ 1,71,22,659/- of Cenvat credit in Form TRAN-1 as per the provisions of Section 140(1) of CGST Act. They had subsequently filed revised ER-1 return for the said month on 31-7-2017 and revised the carried forward the Cenvat credit amount of ₹ 1,73,16,625/- as available in Form TRAN-1. Therefore, as per provisions of Section 142(9)(b) of CGST, the appellant has filed the refund claim of ₹ 1,93,866/- which was not carried forward in TRAN-1. The Adjudicating authority has rejected the said claim on the grounds that the appellant has not availed the statutory remedy as available under Rule 120A of Central Goods and Services Tax Rules, 2007 (CGST Rule); that as per the said CGST Rule, the appellant can file revised declaration in form GST TRANS-1 electronically on the common portal within time period specified and since they failed to do so, the refund in question is not admissible to them.

3. Being aggrieved with the impugned order, the appellant has filed the instant appeal on the grounds that :

• Additional Cenvat credit found to be admissible pursuant to revision of returns furnished under the existing law is liable be refunded in cash under existing law, as per provisions of Section 142(9)(b) of CGST Act; that they had revised return within the time limit prescribed under Rule 8 of Central Excise Rules, 2002.
• It is a settled position that provision of law ought to be interpreted harmoniously in a manner that it does not defeat any other provisions of law; that the credit arising on account of revision of ER-1 return had to be claimed only by way of revision of Form GST TRANS-1, the entire purpose of Section 142(9)(b) supra would stand defeated.
• Rules cannot be override the Act.

4. Personal hearing in the matter was held on 25-10-2018. Shri V. Sripadu, Manager Commercial of the appellant appeared for the same and reiterated the grounds of appeal.

5. I have carefully gone through the facts of the case and submissions made by the appellant. The issue to be decided in the instant case is relating to eligibility of refund amounting to ₹ 1,93,866/- as per provisions of Section 142(9)(b) of CGST Act, due to revision of ER-1 return.

6. Provisions of Section 142(9)(b) of CGST Act reads as under :

“where any return, furnished under the existing law, is revised after the appointed day but within the time limit specified for such revision under the existing law and if, pursuant to such revision, any amount is found to be refundable or CENVAT credit is found to be admissible to any taxable person, the same shall be refunded to him in cash under the existing 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 (1 of 1944) and the amount rejected, if any, shall not be admissible as input tax credit under this Act.”

7. The above referred Section stipulates that where any return furnished under existing law is revised in the CGST regime, within the time limit specified under the existing law and pursuant to such revision any amount is found to be refundable or Cenvat credit is found to be admissible, the same shall be refunded in cash under the existing law. In the instant case, the adjudicating authority has rejected the claim on the grounds that since the appellant have option to avail statutory remedy as available under Rule 117 read with Rule 120A of CGST Rules, they filed the refund claim under Section 142(9)(b) of the CGST Act; that as per the said CGST Rule, the appellant can file revised declaration in form GST TRANS-1 electronically on the common portal within time period specified and since they failed to do so, the refund in question is not admissible to them. For the clarity, I reproduced the provisions of the relevant Rules hereunder.

8. Rule 117 stipulates that :-

“Tax or duty credit carried forward under any existing law or on goods held in stock on the appointed day. – (1) Every registered person entitled to take credit of input tax under section 140 shall, within ninety days of the appointed day, submit a declaration electronically in FORM GST TRAN-1, duly signed, on the common portal specifying therein, separately, the amount of input tax credit [of eligible duties and taxes, as defined in Explanation 2 to section 140,] to which he is entitled under the provisions of the said section.”

Rule 120A of CGST Rule has been inserted on 15-9-2017, vide which revision of TRAN-1 declaration has been permitted for one time only, which reads as under :

RULE 120A. Revision of declaration in FORM GST TRAN-1. – Every registered person who has submitted a declaration electronically in FORM GST TRAN-1 within the time period specified in rule 117, rule 118, rule 119 and rule 120 may revise such declaration once and submit the revised declaration in FORM GST TRAN-1 electronically on the common portal within the time period specified in the said rules or such further period as may be extended by the Commissioner in this behalf.

9. The above referred Rules provides the procedure for transition of tax or duty credit earned forward under existing law or on goods held in stock on the appointed day. In the instant case, I find that the appellant has filed their return on 10-7-2017 and accordingly filed their GST TRAN-1 showing their balance credit. Further, they filed a revised return on 31-7-2017, adding the additional Cenvat credit of ₹ 1,93,866/- admissible to them. They filed a refund claim of ₹ 1,93,866/- on 20-3-2018, which was not carried forward in TRAN-1 under the provisions of Section 142(9)(b) of CGST Act. In the instant case, I observe that though the provisions of Rule 120A specifically allows the appellant to file a revised GST TRAN-1 once within ninety days of the appointed day, which has been further extended till 27th December, 2017 vide CBEC order dated 15-11-2017, the appellant have not availed or bothered to avail such facility and instead, they filed a refund claim on 20-3-2018 which indicates the intention of getting cash of such credit by way of refund by ignoring the statutory provision. It is a fact on records that the appellant had sufficient time to file the revised GST TRAN-1 declaration as per provisions of CGST Rules supra, however, they deliberately chose not to avail such statutory remedy with a specific intention to encash the Cenvat credit. Further, the appellant has also failed to furnish any cogent reason that under which circumstances they did not avail facility as stipulated under CGST Rule for filing revised declaration under TRAN-1. Looking into the facts and circumstances case, I find that the adjudicating authority has correctly rejected the refund claim and I do not find any merit to interfere the impugned order passed by the adjudicating authority. Therefore, I uphold the same.

10. In view of above, I reject the appeal filed by the appellant. The appeal stands disposed of in above terms.