Custom, Excise & Service Tax Tribunal
Pon Pure Chemicals India Private ... vs Ahmedabad on 12 October, 2022
1|Page C/10471/2020 -SM
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
REGIONAL BENCH- COURT NO.3
Customs Appeal No.10471 of 2020-SM
(Arising out of OIA-AHD-CUSTM-000-APP-600-19-20 dated- 16/01/2020 passed by
Commissioner ( Appeals ) Commissioner of Central Excise, Customs and Service Tax-
AHMEDABAD)
PON PURE CHEMICALS INDIA PRIVATE LIMITED .........Appellant
Plot No. 341, 2nd Floor Sector 1/A, Gandhidham
Kutch, Gujarat
VERSUS
C.C.-AHMEDABAD .........Respondent
Custom House, Near All India Radio Navrangpura, Ahmedabad,, Gujarat APPEARANCE:
Shri. Vijay N Thakkar, Consultant for the Appellant Shri Prakash Kumar Singh, Superintendent (AR) for the Respondent CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR Final Order No. A/ 11262 /2022 DATE OF HEARING: 12.10.2022 DATE OF DECISION:12.10.2022 RAMESH NAIR The brief facts of the case are that the appellant have paid double customs duty due to technical glitch in the online payment portal, subsequently they filed refund claim vide their application dated 03.08.2016 which was received by the departmental office on 30.08.2016. The refund claim was subsequently returned for want of some documents. The appellant have re-submitted the claim on 08.11.2017. Though the refund claim was initially sanctioned, the department had filed appeal before Commissioner (Appeals) challenging the sanctioned order. The Commissioner (Appeals) remanded the matter to the adjudicating authority for verification without expressing any specific view. Meanwhile, the sanctioning authority has issued a protective show cause notice for recovery of erroneous refund claim after remand by the Learned Commissioner (Appeals). The adjudicating authority decided the show cause notice whereby, he ordered for recovery of the erroneous refund along with interest. Against this order, the appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) has rejected the appeal, therefore, the present appeal filed by the appellant. Both the lower authorities have passed the order for recovery of erroneous refund on the ground that the refund claim filed by the appellant
2|Page C/10471/2020 -SM was time barred as the date of filing of refund claim was taken as 08.11.2017.
02. Shri. Vijay Thakkar, Learned Consultant appearing for the appellant submits that there is no dispute on the fact that the appellant had filed the refund claim first time vide their application dated 03.08.2016 which was received by the department on 30.08.2016, therefore, the refund claim was filed well within the time-limit stipulated under Section 27 of the Customs Act, 1962. He submits that after the query, though the appellant have resubmitted the refund claim on 08.11.2017 but the date of filing the refund should be taken as 30.08.2016, therefore, the refund is not time bar. In support of his submissions, he placed reliance on the following judgments:-
NOKIA SALES PVT. LTD.- 2019 (368) E.L.T. 975 (Tri.-Ahmd.) CAPRO ENGINEERING INDIA LTD.- 2019 (369) E.L.T. 1461 (Tri.-Del.) RUBBER WOOD INDIA (P) LTD.- 2006 (206) E.L.T. 536 (Tri.-Bang.) REPRO INDIA LTD.- 2016 (43) S.T.R. 203 (Tri.-Mumbai) BALMER LAWRIE & CO. LTD.- 2015 (315) E.L.T. 100 (Tri.-Kolkata)
03. Shri. Prakash Kumar Singh, Learned Superintendent (Authorized Representative) appearing on behalf of the Revenue reiterates the finding of the impugned order.
04. On careful consideration and perusal of records, I find that as regard the date of filing the refund claim the adjudicating authority in the Order-In- Original has recorded the fact in para 16 which is reproduced below:-
"16. The contention of the claimant that they have submitted their request for refund on 03.08.2016. I find that the refund application dated 03.08.2016 has been received by this office on 30.08.2016 and the same has been returned to the claimant for want of certain documents which was not submitted to this office along with refund claim. Further, I observe that in response the claimant has submitted a letter dated 03.08.2016 received by this office on 08.11.2017 which is nothing but to mislead the department to show their claim dated was 03.08.2016. The date of receipt of the refund claim shown as 08.11.2017 [Inward seal of the office shows No.9571 dated 08.11.2017]. Therefore, I do not agree with the contention of the claimant submitted at the time of Personal Hearing. The scan copy of both the letters are as it is pasted below."
From the above findings there is no dispute that the appellant had indeed submitted their refund claim vide letter dated 03.08.2016 which had been received by the office on 30.08.2016. Though the refund was returned for
3|Page C/10471/2020 -SM some query for want of documents and subsequently the appellant had resubmitted the same claim on 08.11.2017, the date of filing of refund claim shall be taken as 30.08.2016 not 08.11.2017, accordingly, the refund was filed well within the time. This issue is no longer res integra as the same has been decided in plethora of judgments, some of the judgments are cited below:-
NOKIA SALES PVT. LTD.- 2019 (368) E.L.T. 975 (Tri.-Ahmd.) "4. I have carefully considered the submission made both the sides and perused the records. I find that as regard the time bar the refund will not arise as from the date of Hon'ble Supreme Court judgment in the case of SRF Industries, the appellant was not the litigant, however the law applies to the appellant case also subject to refund is filed within one year from the relevant date. In the present case, the relevant date will be a date of payment of duty and not from the date of order of Hon'ble Supreme Court in the case of SRF Industries. However, the appellant initially filed the refund claim which was returned and then they resubmitted subsequently. In this case the initial filing of refund claim shall be considered as date of filing of refund claim and if it is within one year from the date of payment of duty then the same cannot be rejected on time bar. As regard unjust enrichment, I find that the appellant have submitted only Chartered Accountant Certificate however they have not submitted any documentary evidence in support of their claim such as the price structure of the mobile, pre and post payment of excess Customs duty they also not submitted their books of accounts in this regard, therefore, I am of the view that the matter needs to be remitted back to the adjudicating authority for passing a fresh order in view of my observation. The appellant shall submit the necessary documentary evidence to support their claim that the incidence of excess paid duty was not passed on. The impugned order is set aside. Appeal is allowed by way of remand to the adjudicating authority."
CAPRO ENGINEERING INDIA LTD.- 2019 (369) E.L.T. 1461 (Tri.-Del.) "5. After hearing both the parties, the only question to be adjudicated herein is as to whether the date of refund application as required in Section 11B of the Customs Act has to be the date of application on which it has been filed or it has to be the date on which the deficiencies in the application got corrected. For the purpose, Section 11BB is relevant to be looked into, it reads as follows:
"11BB. Interest on delayed refunds. - if any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, [not below five percent and not exceeding thirty percent per annum as is for the time being fixed [by the Central Government, by notification in the Official Gazette] on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty:"
4|Page C/10471/2020 -SM It makes it clear when even read with Section 11BB of Central Excise Act that for the payment of interest after three months from the date of receipt of refund application, the applicant shall be entitled for the interest at the rate as prescribed. The provision is nowhere expressing about "application" to be called so only in case it is supported by the requisite documents. The law has been settled that the fiscal legislation has to be construed strictly and one has to look merely at what is said in the relevant provision. There is nothing to be read in or nothing to be implied and there is no room for any intentment as it was held by Hon'ble Apex Court in the case Ajmera Housing Corporation and Other v. Commissioner of Income Tax, 2010 (8) SCC 739. If at this stage, the plea of Department is looked into still the deficiency of application does not entitle the Department to get an extension of the period of 3 months as has been statutorily provided. Further, there is a Notification as impressed upon by the appellant. Perusal thereof shows that it is a clarificatory decision specifically with respect to the refund of pre-deposit requiring such pre-deposits to be made within three months from the date of the Tribunal Orders. As mentioned in para 4 of the Circular, the word used therein is that such pre-deposit must be returned within three months rather from the date of the Order passed by the appellate Tribunal. The date of the said Order is 24-1-2017. The Department was well representing before the Tribunal for the said Appeal.
6. It is also apparent from record that the deficiency, whatever, noticed in the application was informed to the applicant after 15 days. It is Department's acknowledged case that the application was filed on 15-3- 2017 and the copy of the Final Order was asked from the applicant vide the Department's letter dated 30-3-2017. The Hon'ble Apex Court in the case of Hamdard (WAQF) Laboratories (supra) has clarified that it is obligatory on the part of the Revenue to inform deficiencies and defects in the refund application within two days of the receipt thereof. To my opinion, the statute is not making any distinction in the date of receipt of application from that of the receipt of the application complete in all respect. The explanation as relied upon by Commissioner (Appeals) of some Custom Refund Regulations cannot supersede the statute and the mandate thereof in the Section 11B and 11BB of the Central Excise Act, 1944. In view of the entire above discussion, the Order in hand is set aside; Appeal stands allowed. Consequential benefits to follow."
RUBBER WOOD INDIA (P) LTD.- 2006 (206) E.L.T. 536 (Tri.-Bang.) "3. On a careful consideration, it is seen that the refund application was filed within time and within six months from the date of the payment of duty. The defects were rectified and the refund application was re-filed on 8-3-2002. The Tribunal in the case of Goodyear India Limited (supra) has held in an identical situation that the date for limitation should be reckoned from the original date of filing of the Bill of Entry. In view of this judgment, we have to hold that the application for refund was filed within time and the same is not barred by limitation. The matter is remanded to the Original Authority to decide the case on merits by giving an opportunity of hearing to the appellant and the matter should be decided within four months from the receipt of this order. The appeal is allowed by remand to the Original Authority."
5|Page C/10471/2020 -SM REPRO INDIA LTD.- 2016 (43) S.T.R. 203 (Tri.-Mumbai) "11. With this elapse of time in finalizing the claim for refunds the validity of which was sub silentio not questioned, the original authority appeared to have been actuated by the probability of claim for interest arising from the delay that entailed. To reject the claims thereafter, not on merit but by resort to bar of limitation, at the end of the protracted process reflects lack of responsibility and lack of accountability. That this is so is confirmed in the concurrence with this summary disposal by the first appellate authority."
BALMER LAWRIE & CO. LTD.- 2015 (315) E.L.T. 100 (Tri.-Kolkata) "5.1 Now, reverting to the dispute whether the refund claim is filed beyond the period of one year from the relevant date, we find that the Applicant had filed the refund claim initially on 11-12-2002, for an amount of Rs. 9,06,932/- involving the period, 13-2-2001 to 30-4-2002. The said refund claim was subsequently returned to the Appellant for removal of defects by the Assistant Commissioner on 5-3-2003. Accordingly, the defects were removed and the refund claim was again submitted on 12-6-2003. It is the contention of the Appellant that the date of refund claim be considered as 11th December, 2002, whereas the Revenue submits that it was complete in all respects, when filed on 12th June, 2003, hence that should be taken as the filing date. In rejecting the refund claim as time-barred, both the authorities below had observed that the date on which refund claim was filed only after removal of defects, be considered as the date of filing of the refund claim. We do not find force in the observation/reasoning of the Department, inasmuch as the refund of duty was sought, after having been paid in excess at the time of removal/clearance of the goods from the factory and the same was filed on 11th Dec., 2012. The cause of action arose on the date of payment of duty, and the claim had been filed within the time stipulated under Section 11B of the CEA, 1944, as prescribed on 11-12-2002. The mandate of sub-section (2) of Section 11B of CEA, 1944 is that the Asst. Commissioner should accept it in full or in part or may reject it. However, instead of rejection of the claim, it was directed by the Department on 5- 3-2003, to file more documents/removal of defects, which the Appellant had carried out the said direction by removing the defects. In such circumstances, it cannot be said that the refund claim was filed for the first time on 12th June, 2003 and hence, barred by limitation. In our view, the date of claiming the refund of duty paid in excess, be the date when the claim was launched with the department i.e. on 11th December, 2002."
From the above judgments, it is settled that even if the refund claim is filed well within the time and the same is returned for want of clarification or documents and the claim was resubmitted, the date of filing the refund application is taken as the date of first filing the refund claim and not the date on which the claim was resubmitted. In the present case also there is no dispute that the first time refund claim was filed on 30.08.2016 which
6|Page C/10471/2020 -SM was well within the stipulated time. Accordingly, the refund filed by the appellant is not hit by limitation.
05. Hence, the impugned order is not sustainable, the same is set aside. Appeal is allowed.
(Dictated & Pronounced in the open court) (RAMESH NAIR) MEMBER (JUDICIAL) Mehul