Custom, Excise & Service Tax Tribunal
M/S Ingersoll Rand (India) Ltd vs Commissioner Of Customs,Acc, Mumbai on 16 June, 2009
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/169/03
(Arising out Order-in-Appeal No. 167/2002 AP Misc(Air) dated 14.11.2002 passed by the Commissioner of Customs (Appeals), Airport, Mumbai)
For approval and signature:
Honble Mr. P.G. Chacko, Member (Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the 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?
M/s Ingersoll Rand (India) Ltd.
Appellant
Vs.
Commissioner of Customs,ACC, Mumbai
Respondent
Appearance:
Shri Sushant Murthy, Advocate for the appellant Shri Y.D. Banga, SDR for the respondent CORAM:
Honble Mr. P.G. Chacko, Member (Judicial) Date of hearing : 16.6.2009 Date of decision : 16.6.2009 O R D E R No:..
After examining the records and hearing both sides, I find that the question arising in this case is whether the lower authorities were right in having rejected the assessees refund claim on the ground of limitation. According to the authorities, the claim filed by the assessee for refund of Rs.2,04,638/- is time-barred inasmuch as, according to them, the claim was filed only on 24.2.2001. The amount of duty, of which refund was claimed, was paid on 24.8.1998. According to the party, the refund claim was presented on 23.2.1999. On a perusal of the records, I come across a document which is apparently a xerox copy of the asessees application for refund. This document, in its top margin contains a hand written note reading :
Elsewhere in this document is there a seal with somebodys dated initial entered in the middle. The date shown here is 23/2. The lower authorities have assumed this date to be 23.2.2001 whereas, according to the assessee, this date is 23.2.1999. Both sides agree that the date noted in the above manner on the application for refund is the date of filing of the application. If the refund claim was filed on 23.2.1999, it is within time and otherwise, it is liable to be rejected as time barred. As is normally done, in a case of this kind, this bench directed the respondent to produce the original file through SDR. This direction was issued as early as 4.9.2008. Since then, the matter has stood adjourned from time to time as the SDR sought time to produce the original records. Ultimately, on 15.6.2009, a final chance was given to the Jt. CDR to place the original records before the bench through the Asst. Commissioner (refunds) of the Commissionerate concerned. Accordingly, the case is arising today.
2. The ld. JCDR submits that the Additional Commissioner of Customs, who is superior to the Asst. Commissioner concerned is present. However, the officer is not possessed of the requisite records. JCDR submits that these records are not available with the Commissionerate. In these circumstances, I am constrained to hold that there is no successful rebuttal of the assessees claim that the refund claim was filed on 23.2.1999. Such a claim ought not to have been rejected as time-barred, though it could have been disposed of on merits having regard to the aspect of unjust enrichment.
3. The orders of the lower authorities are set aside and this appeal is allowed by way of remand with a direction to the original authority to dispose of the said refund claim after giving the claimant a reasonable opportunity of adducing evidence against the bar of unjust enrichment as also of being heard. As the dispute in this case is more than a decade old, it is desirable that an order of adjudication be passed as early as possible, in any case within a period of 3 months from the date of receipt of certified copy of this order.
(Dictated in Court) (P.G. Chacko) Member (Judicial) //SR 2