Custom, Excise & Service Tax Tribunal
Cc,Cce & Cst, Bhopal vs M/S.Essarijee Construction Pvt. Ltd on 19 September, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI Date of Hearing/decision:19.09.2014 Service Tax Appeal No.835 of 2011-CU(DB) [Arising out of Order-in-Appeal No.58/BPL/2011 dated 9.3.2011 passed by the Commissioner of Central Excise, Bhopal] CC,CCE & CST, Bhopal Appellant Vs. M/s.Essarijee Construction Pvt. Ltd. Respondent For approval and signature: Honble Smt. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) --------------------------------------------------------------------------------------------------
1. Whether Press Reporters may be allowed to see CESTAT (Procedure) Rules, 1982.
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
Appearance: Rep. by Shri Amresh Jain,DR for the appellant.
Rep. by none for the respondent.
CORAM: Honble Smt. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) Final Order No.54017/2014 /Dated:19/09/2014 Per Archana Wadhwa:
Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal.
2. We have heard ld. DR appearing for the Revenue. None appeared for the respondent.
3. The respondents were engaged in construction of the residential complex inasmuch as they did not satisfy the definition of the said category, they filed a refund claim on 30.05.2009 for the service tax paid by them during the period May, 2008 to Jan. 2009. Certain objections were raised by the jurisdictional Central Excise Authorities as regards the proper format, etc. for filing the refund claim. Accordingly, the respondent removed the defects and deficiencies and filed the claim in proper format on 6.1.2010 .
4. The lower authorities by adopting a view that the subsequent date of filing the refund claim on 6.1.2010 is the proper relevant date for the purpose of limitation, initiated proceedings against them for denial of refund claim on the ground of limitation. The proceedings so initiated resulted in passing of an order by the adjudicating authority denying the refund claim.
5. The said order was challenged before the Commissioner (Appeals), who observed that inasmuch as the assessee has initially filed its claim for refund of service tax on 13.05.2009, by way of addressing a letter to the Revenue, which was being adjudicated and subsequently, the refund was filed on 6.1.2010, the first date of filing the refund claim, though not in proper format, has to be treated as the actual date of filing the refund. If the said date is adopted, the claim is well within the period. Accordingly, he allowed the appeal partly in respect of the period falling within the limitation.
6. Revenues contention in the present appeal is that the subsequent date when the assessee filed the refund claim in a proper format should be taken as the relevant date.
7. Ld. DR submits that the letter dated 13.05.2009 was neither proper nor appropriate inasmuch as the same was not in the proper format and no documents evidencing any payment of service tax were attached with the same. It is only subsequently when objected by the Revenue, they filed a proper application. As such, he submits that the appellate authority has wrongly extended the benefit of limitation to the assessee.
8. Having gone through the impugned order of the Commissioner (Appeals), we find that the facts are not disputed. Admittedly, the assessee filed the claim for the first time on 13.05.2009, which may not be in a proper format. The appellate authority has referred to various decisions of the Tribunal, in support of conclusion that the original date of filing the refund claim to be taken as the relevant date for the purpose of limitation. On defects pointed out by the department, subsequent date of filing the revised refund claim cannot be taken into consideration for deciding the limitation issue. The Commissioner (Appeals) has referred to the Tribunals decisions in the case of CST, New Delhi Vs. HMA Udyog Pvt. Ltd. reported in 2010 (20) STR 827 (Tribunal-Delhi), CCE, Delhi-I Vs. Arya Export & Industries 2005 (192) ELT 89 (Delhi), IGP Engineers Pvt. Ltd. Vs. CC, Chennai 2008 (232) ELT 0481 (Mad.) and Goodyear India Ltd. Vs. CC, New Delhi 2002 (150) ELT 331 (Tribunal-Delhi. Inasmuch as the issue is settled by the various referred decisions of the Tribunal, we find no infirmity in the view adopted by the Commissioner (Appeals). However, we make it clear that the refund claims would be subjected to the provisions of unjust enrichment.
9. Revenues appeal is rejected.
[Operative portion already pronounced] ( Archana Wadhwa ) Member (Judicial) (Rakesh Kumar ) Member (Technical) ckp 1