Custom, Excise & Service Tax Tribunal
M/S. Pal Mohan Electronics Pvt. Ltd vs Commissioner Of Customs (Acc & Import), ... on 6 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. C/87393/15-Mum [Arising out of Order-in-Appeal No. MUM-CUSTM-AMP-APP-237/15-16 dated 03/08/2015 passed by the Commissioner of Customs (Appeals), Mumbai-III] For approval and signature: Honble Mr. Ramesh Nair, Member (Judicial) =======================================================
1. Whether Press Reporters may be allowed to see : No 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 : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen of the Order?
4. Whether Order is to be circulated to the Departmental: Yes authorities?
======================================================= M/s. Pal Mohan Electronics Pvt. Ltd.
:
Appellant VS Commissioner of Customs (ACC & Import), Mumbai :
Respondent Appearance Written submission for the Appellant Shri V. R. Reddy, A.C. (A.R.) for the Respondent CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 06/04/2016
Date of decision: / /2016
ORDER NO.
Per : Ramesh Nair
The appeal is directed against Order-in-Appeal No. MUM-CUSTM-AMP-APP-237/15-16 dated 03/08/2015 passed by the Commissioner of Customs (Appeals), Mumbai-III, whereby the Ld. Commissioner (Appeals) allowed the Revenues appeal filed against Order-in-Original No. AC/KR/3302/2012/Adjn-ACC dated 06-11-2012.
2. The fact of the case is that the appellant claimed a refund in respect of 4% SAD paid for an amount of Rs. 16,18,521/-. The adjudicating authority sanctioned the claim vide order-in-original dated 06-11-2012. The revenue filed the appeal before the Commissioner (Appeals) in respect of three Bills of Entry involving the refund of Rs. 140764/- on the ground that this is against three claims submitted on 07-06-2012, 02-07-2012 & 17-05-2012 against the TR-6 challans dated 07-06-2011, 02-07-2011 & 17-05-2011 respectively, on the ground that these refund claims were filed beyond the period of one year the Commissioner (Appeals) allowed the appeal of Revenue, whereby the order on refund of Rs. 140764/- was set aside.
3. None appeared on behalf of the appellant, however written submission of appellant is placed in the file. The appellant in the written submission submits that all the three refund claims were filed within one year from the date of payment on custom duty, if one day from the entire period is excluded as per the provision of clause 9 of General Clause Act.
4. Shri V. R. Reddy, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue, reiterates the findings of the impugned order. He submits that as per the fact in all the three cases, the appellant delayed by one day in filing the refund claim. Therefore, the refund was rightly denied by the Ld. Commissioner (Appeals). The impugned order is sustainable.
5. I have carefully considered the submission made by Ld. A.R. and written submission of the appellant and perused the records.
6. I reproduced the details of the refund, which is not under dispute:
S. No. B/E. No. DATE TR-6 CHALLAN NO. DATE DATE OF SUBMISSION SAD PAID (Rs.) SAD REFUND (Rs.) 02 3714243 6-6-2011 2001298989 7-6-2011 7-6-2012 5,322.40 5,322.00 07 3898875 25-6-2011 2001478037 2-7-2011 2-7-2012 75,884.90 75,884.00 15 3502244 14-5-2011 2001136647 17-5-2011 17-5-2012 59,558.90 59,558.00 Total 1,40,766.20 1,40,764.00 From the above details, it is observed that the appellant filed the refund claims exactly on the same dates of TR Challans in the next year. Regarding the commencement and termination of time, Section 9 of General Clause Act, 1897 provides as under:
(a) In any Central Act or Regulation made after consignment of this Act, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time to use the word from, and for the purpose of excluding the last in a series of days or any other period of time to use the word to.
(b) This Section applies also to all Central Act made after the 3rd day of January, 1968 and to all regulations made on or after the 14th day of January, 1887.
In terms of the above provisions, the period of one year shall commence on 08-06-2011, 3-07-2011 & 18-05-2011 accordingly one year will be completed on 07-06-2012, 02-07-2012 and 17-05-2012 respectively, since the refunds were filed on these dates, the refund clearly filed within one year from the date of payment/TR-6 challan.
7. As per above undisputed position, I am of the considered view that the adjudicating authority has rightly sanctioned the refund in respect of the three bills of entries involved in the present case. Therefore, the impugned order in not sustainable and is hereby set aside.
8. The appeal is allowed in above terms.
(Order pronounced in court on _____________) Ramesh Nair Member (Judicial) saifi 5 C/87393/15-Mum