Custom, Excise & Service Tax Tribunal
Aneeta Technopack Pvt Ltd vs Service Tax - Ahmedabad on 17 February, 2022
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
REGIONAL BENCH- COURT NO.3
Service Tax Appeal No.10484 of 2019
(Arising out of OIA-AHM-EXCUS-003-APP-136-18-19 dated 01/01/2019 passed by
Commissioner ( Appeals ) Commissioner of Central Excise, Customs and Service Tax-
AHMEDABAD)
Aneeta Technopack Pvt Ltd ........Appellant
E-32/33/34,Gidc, Sector-26
GANDHINAGAR, GUJARAT
VERSUS
C.S.T.-Service Tax - Ahmedabad .......Respondent
7 Th Floor, Central Excise Bhawan, Nr. Polytechnic CENTRAL EXCISE BHAVAN, AMBAWADI, AHMEDABAD, GUJARAT-380015 APPEARANCE:
Shri Vipul Khandhar, (Chartered Accountant) for the Appellant Shri R P Parekh, Superintendent (AR) for the Respondent CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR Final Order No. A/ 10105 /2022 DATE OF HEARING: 10.12.2021 DATE OF DECISION: 17.02.2022 RAMESH NAIR The brief facts of the case are that the appellant had not received proof of export within the stipulated time limit of six months. On the objection raised by audit under FAR. No.1381/2016-17 they reversed Central Excise Duty of Rs.590423/- vide R.G.23A Pt-II Entry No. 180 dated 20.06.2017 out of which the present refund of Rs. 127581/- was claimed against the submission of proof of export. The said refund claim was rejected by the adjudicating authority on the ground of time bar that the appellant has filed the refund claim beyond one year after reversal of the duty in R.G.23A. The said rejection order was upheld by the learned Commissioner (Appeals) vide the impugned order therefore, the present appeal filed by the appellant.
02. Shri Vipul Khandhar, learned Chartered Accountant appearing on behalf of the appellant submits that though the amount was reversed on the observation of the audit party on 20.06.2017 but the department has adjusted provisional duty paid by the appellant as on 29.08.2017. The
2|Page ST/10484/2019-SM refund claim was filed on 22.06.2018 therefore, the period of one year should be reckoned from the adjustment of duty paid by the appellant.
Accordingly, the refund was filed within one year from the date of adjustment i.e. 29.08.17. He placed reliance on the following judgments:-
DEEPAK FERTILISERS & PETROCHEM. CORPN.- 2018 (361) E.L.T. 1068 (Tri.-Mumbai) NSP ELECTRONICS LTD.- 2016 (331) E.L.T. 451 (Tri.-Bang.) APTAR BEAUTY & HOME INDIA LTD.- 2014 (312) E.L.T. 781 (Tri.- Bang.) IN RE : USV LIMITED- 2010 (261) E.L.T. 767 (COMMR. APPL.)
03. Shri R P Parekh, learned Superintendent (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the impugned order. He placed reliance on the following judgments:-
GALAXY TRANSMISSION PVT LTD Vs. CCE, DAMAN- A/12579/2021 dated 02.12.2021.
MDP INFRA (INDIA) P LTD Vs. CCE- 2019 (29) GSTL 296 (MP) MDP INFRA (INDIA) P LTD Vs. COMMISSIONER- 2021 (48) GSTL J49 (SC) PATEL CONSTRUCTION COMPANY Vs. CST- 2017 (50) STR 257 (Guj.) BENZY TOURS & TRAVELS PVT LTD Vs. CST, MUMBAI-I- 2016 (43) STR 625 (Tri-Mum) ELGI EQUIPMENTS LTD Vs. CCE, COIMBATORE- 2013 (31) STR 583 (Tri-Chennai)
04. On careful consideration of the submission made by both the sides and on perusal of the records, I find that the only issue to be decided by me is that whether the refund claim of the appellant against export of goods under bond is within the time limit prescribed under Section 11B or otherwise. Both the lower authorities have rejected the claim on the ground that the appellant have not filed the refund claim within one year from the date of payment. I find that initially the goods were exported under bond however, since the appellant could not produce the proof of export within stipulated time period of six months. On the objection of the audit, they had reversed the duty and thereafter on receipt of proof of export and submission thereof and also after realisation of export proceed, they filed the refund claim. It is the submission of the appellant that after payment of duty, on audit objection the duty was paid and subsequently adjusted by the department as duty payment therefore, the time limit should be reckoned from date of adjustment. They have alternatively submitted that time limit
3|Page ST/10484/2019-SM should also be considered from the date of realisation of export proceed as without the same, refund could not have been processed.
4.1 I find that firstly the appellant have not represented the case before the adjudicating authority therefore, the adjudicating authority had no occasion to verify the facts regarding adjustment of duty paid on the audit objection, date of realisation of foreign exchange and submission of proof of export. I also did not find any evidence such as any correspondence regarding adjustment of duty by the department against the payment made by the appellant. In this fact, I am of the view that the matter needs to be reconsidered by the adjudicating authority. I also note that in the peculiar facts of the present case since non-filing of proof of export beyond the control of the appellant, they had also not realized the export proceed the period from payment of duty till adjustment of duty by the department/receipt of export proceed/receipt of proof of export should be deducted for computing the time limit of one year in terms of Section 11B.
05. With the above observation and also by considering the various judgments submitted by both the sides, I set aside the impugned order and remand the matter to the adjudicating authority for passing a fresh order after observance of principal of natural justice.
06. Appeal is allowed by way of remand to the Adjudicating Authority.
(Pronounced in the open court on 17.02.2022 ) (RAMESH NAIR) MEMBER (JUDICIAL) Mehul