Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise And ... vs Suzlon Wind International Ltd on 28 August, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH
BANGALORE
Final Order No. 21497 / 2014
Application(s) Involved:
ST/Stay/1957/2012 in ST/2682/2012-DB
Appeal(s) Involved:
ST/2682/2012-DB
[Arising out of Order-in-Appeal No.291/2012 dated 12/07/2012 passed by the Commissioner of Central Excise (Appeals), Mangalore.]
Commissioner of Central Excise and Service Tax MANGALORE
7TH FLOOR, TRADE CENTRE,
BUNTS HOSTEL RD.,
MANGALORE - 575003
KARNATAKA
Appellant(s)
Versus
SUZLON WIND INTERNATIONAL LTD
PLOT NO.7, SYNEFRA (SIL), E& C LTD.SEZ VILLAGE, PADUBDIRI, UDUPI 574111
Respondent(s)
Appearance:
Dr. A. K. Nigam,
Addl. Commissioner (AR)
For the Appellant
Mr. B. Venugopal, Advocate
SWAMY ASSOCIATES
G-8, FORTUNA ICON, APARTMENTS,JODIDAR ASHWATHAPPA FARM, SAHAKARA NAGAR, BANGALORE 560 092
For the Respondent
CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER
Date of Hearing: 25/08/2014
Date of Decision: 25/08/2014
Order Per : B.S.V.MURTHY
Both sides agree that in the impugned order, the Commissioner (A) has omitted to include the fact that the matter is remanded to the original adjudicating authority for fresh decision even though his observations in paragraph 5 and paragraph 6 show that the decision taken was to remand the matter. The paragraphs 5 and 6 of the order are reproduced for ready reference.
5. The discretionary powers given to the Assistant Commissioner has to be exercised by application of mind to the facts of the case. When the delay in filing the claim is sought to be condoned by the claimant, the competent officer (here Assistant Commissioner) has to examine and decide whether such delayed claim can be accepted. The reasons for the same or for rejecting, request for condonation are to be recorded. There is no provision to have two separate proceedings in such cases viz., first to decide on delay/request for condonation and then on the refund claim per se. Both can be taken together and decided. This is done in various such situations in cases where delayed appeals, etc., are taken up for decision.
6. I find that refund claim was rejected only on the reason that the delay condonation was not sought within stipulated period of 6 months. There is no recording on merit on the request for condonation. In other words, the adjudicating authority has to decide the time bar aspect based on the submissions made by the appellant and to proceed further based on his findings on time bar. Hence, I am inclined to allow the appeal of the appellant. Accordingly, I pass the following order.
ORDER
I allow the appeal and set aside the order-in-original No.21/2011 (R) AC dated 28.6.2011 passed by the Assistant Commissioner of Central Excise and Service Tax, Udupi Division, Udupi.
2. In view of the fact that the Commissioner (A) had directed the claimant to file a request for extending the period of time for filing refund claim beyond six months and thereafter the matter should be decided, it is appropriate that the matter should be remanded to original adjudicating authority by us at this stage itself. In our opinion, it is not necessary for the appellant to file separate request for extension of time for filing the refund claim and if the refund claim is being filed late, in the claim itself they can seek extension of time also and this can be considered by the original adjudicating authority. In any case, since the matter is being remanded, the claimant can file a separate request for extension of time and the original adjudicating authority shall proceed to decide the matter in accordance with the directions of the Commissioner (A).
(Operative portion of the order has been pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER rv 3