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GST - Interpretation of Section 140(3) of the CGST Act - Interpretation of Transitional provisions - Refund under section 142(3) of the CGST Act “in cash” of taxes suffered under the previous regime – On account of non-inclusion of the service tax paid on port services in ER-1 Return, the petitioner could not transition the Cenvat Credit u/s 140 of CGST Act through TRAN-1 – Petitioner took inadmissible Cenvat credit of service tax paid on port services in ST-3 return and thereafter claimed refund of the same by relying to section 142(3) of CGST, Act read with Section 174(2)(c) of the CGST Act and Section 11B(2)(c) of the Central Excise Act, 1944 - denial of refund of service tax paid on “input service” relating to “port service” with the view that the appellant has failed to declare the same in time in ER-1 return and also in TRAN-1 after enactment CGST Act – aggrieved assessee filed instant petition – HELD – Section 11B of CEA, 1944, as it stood immediately before the appointed date, does not sanction any refund where the assessee has failed to claim CENVAT Credit as per CCR, 2004 – Section 142(3) of the CGST Act does not confer a new right which never existed under the old regime except under certain circumstances - 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 - Section 142(3) 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 - 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 devoid of any merit - the petitioner did not claim transitional credit but claimed the impugned amount of service tax on “port services” as credit in their ST-3 return which they were not entitled as they were assessee under service tax only on RCM and the “port services” availed by the petitioner was not covered under reverse charge mechanism - the petitioner on the one hand illegally took credit of service tax on “port services” as credit in their ST-3 return and on the other hand filed application for refund of the same amount under section 142(3) of the CGST, Act which is certainly not permissible in law - The authorities have rightly considered these aspects of the matter while rejecting the application for refund filed by the petitioner – there is no reason to interfere with the findings and reasons assigned by the adjudicating authority as well as the appellate authority – the writ petition is dismissed - The late receipt of the original invoice which has been cited as the reason for failure to claim CENVAT Credit under the existing law and transitional credit under section 140(1) of the CGST, Act was wholly attributable to acts and omissions of the petitioner and its service provider of the “port services” and the respondent authorities had no role to play - The petitioner had failed to avail the opportunity to claim CENVAT Credit of service tax on port services in terms of the existing law read with section 140 of CGST, Act and had no existing right of refund on the date of coming into force of CGST, Act - The petitioner having not used the port services for export was not entitled to claim refund under the existing law. The petitioner was also not entitled to refund on account of the fact that the petitioner had already taken credit of the service tax paid on port services in ST-3 Return of service tax although admittedly the petitioner was not entitled to take such credit in ST-3 Return - On account of aforesaid three distinct reasons the petitioner was rightly held to be not entitled to refund under section 142(3) of CGST, Act by the impugned orders - The relied upon provisions of CGST Act do not cover any such situation relating to any consequences due to inter parte acts and omissions - Application of Section 140(5) of the CGST Act - 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 - Whether petitioner had any accrued or vested right – HELD - The petitioner was entitled to take credit of the service tax paid to the port authorities for the “port services” by way of CENVAT Credit as per the provisions of the rules – however, the petitioner has failed to follow the prescribed procedure to avail such a credit and consequently having lost such a right and cannot claim revival of such a right and claim refund of the same by virtue of transitional provisions under Section 140(3) of the CGST Act - the petitioner had no existing right on the date of coming into force of CGST Act to avail credit of the service tax paid on “port services” as CENVAT Credit and accordingly, the provision of Section 140(3) of the CGST Act cannot be construed to have conferred such a right which never existed on the date of coming into force of CGST Act - the petitioner did not have any existing right of availing CENVAT Credit or refund on the date of coming into force of the CGST Act which can be said to have accrued or vested and consequently saved by Section 174 (repeal and saving) read with Section 6 of General Clause Act
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