Custom, Excise & Service Tax Tribunal
M/S. Orient Craft Limited (Eou-Ii) vs Cce, Haryana on 24 November, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing: 24.11.2010
Date of decision: 24.11.2010
For approval and signature:
Honble Shri Rakesh Kumar, Member (Technical)
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?
Service Tax Appeal No.611/2010-SM (BR)
[Arising out of common Order-in-Appeal No.72.MA/GGN/2010 dated 16.02.2010 passed by the Commissioner of Central Excise (Appeals), Delhi-III].
M/s. Orient Craft Limited (EOU-II) .Appellants
Vs.
CCE, Haryana Respondent
Appearance:
Rep. by Shri A.K. Jain & Shri Dinesh Mittal, Representatives for the appellants.
Rep. by Shri A.Khanna, JDR for the respondent.
CORAM: Honble Shri Rakesh Kumar, Member (Technical) Order No/Dated:24.11.2010 Per Rakesh Kumar:
The facts leading to this appeal are, in brief, as under:-
1.1 The appellants filed a refund claim of Rs.8,72,995/- under Rule 5 of the Cenvat Credit Rules, 2004 on the ground that their unit is a 100% EOU and had taken credit of service tax paid in respect of inputs services, which have been used during the period April, 2007 to June, 2007 in the manufacture of the export goods, readymade garments and that this credit could not be used by them for payment of duty on clearance for home consumption, for the reason that they are 100% EOU having no DTA clearances. According to the Department, the refund claim for the quarter April, 2007 to June, 2007 was received on 18.02.09. The appellants were issued show cause notice dated 1.5.2009 proposing rejection of their refund claim as time barred as while the refund claim was for the April, 2007 to June, 2007 period, and the same as per the records of the Division Office had been received by the Asstt. Commisisoner on 18.02.2009. The Asstt. Commissioner vide order-in-original dated 30.07.2009 rejected the refund claim as time barred. Though before the Asstt. Commissioner, the appellant pleaded that the refund claim had been submitted in time i.e. 31.03.2008 and also produced an acknowledgement bearing the date of receipt but without any signature of the receiving officer and also that they had filed refund claim again on 18.02.2009, on being verbally asked to re-submit the refund application, the Asstt. Commissioner did not accept this plea of the appellant and held that the refund claim was submitted only on 18.02.2009, that is, after the expiry of the limitation prescribed and rejected the same as time barred. On appeal to the Commissioner (Appeals) against the Assistant Commissioner and the Commissioner (Appeals) vide order-in-appeal dated 16.2.2010 dismissed the appeal. The Commissioner (Appeals) in his order also observed that the Department vide letter dated 1.9.2008 had informed the appellants that neither the Divisional Office (Technical brand) nor the concerned Range Office had received their refund application for an amount of Rs.8,72,995/- on 31.3.2008. It is against this order of the Commissioner (Appeals) that the present appeal has been filed.
1.2 When this matter was heard on 22.07.2010, the Tribunal passed a miscellaneous order no.190/2000-SM (BR) directing the Commissioner to investigate the appellants submissions regarding the practice of acknowledging, letters, applications, etc only by putting a dated stamp and without signature of the receiving persons. In this regard, the Tribunals directions are reproduced below:-
4. It is claimed that letters addressed or refund claims addressed to the Divisional Officer is being acknowledged by affixing the date stamp without affixing the signature of the receipient of such letters/refund claims. The practice is widely prevalent.
5. In this particular case, it is claimed that they filed the application on 31.3.2008 claiming refund for the period April to June, 2007 which was acknowledged in the above manner, that the original application was reportedly misplaced by the Department and again they were asked to submit copy of the application which they submitted vide their letter dated 16.2.2009 which was acknowledged on 18.2.2009 again without affixing the signature. Taking the claim as filed only on 18.02.2009, the claim has been rejected as barred by time.
6. The appellant also submitted that earlier claims were also acknowledged in the same fashion and the same were settled. In support of above submission, copy of refund application for the period January to March, 2007 which was acknowledged on 27.11.2007 and which has been settled was enclosed. It was also submitted that applications filed for the later period was also acknowledged in the same fashion and the refund sanctioned.
7. In view of the above, the Commissioner is directed to get the matter investigated about the submission of the appellant on the practice of acknowledgement and file a factual report. The present practice of acknowledgement of letters/refund claims by the Division/Commissionerate authorities should also be specifically mentioned. If the practice as claimed by the appellant continues, the authority for following such practice should also be quoted.
8. If any remedial action was taken and any revised instructions issued by Commissioner, the same should also be brought on record.
9. The matter is adjourned to 31.08.2010. 1.3 Subsequently, this matter came up for hearing on 30.09.2010, the Tribunal once again directed the Commissioner to submit the report in terms of the Tribunals order dated 22.07.2010.
1.4 Today, at the time of hearing, the ld. Departmental Representative submitted report dated 20.10.2010 of the Commissioner, which is reproduced as under:-
This is in supersession of this office letter even no.9746 dated 29.09.10 addressed to Departmental Representative.
Please refer to Tribunals Misc. Order No.190/2010/SM dated 22.07.2010 in Appeal No.611/2010-SM (BR) in case of M/s. Orient Craft Ltd. Vs. Commissioner of central excise, Delhi-III.
In this regard, it is mentioned that the practice followed by the office of Central Excise Division-III, Gurgaon, was that on receipt of documents by party a dated stamp without signature was put on the partys copy and immediately documents were registered in the inward register and receipt no. of the register was mentioned on the documents. The captioned refund claim for the period April to June, 2007 for Rs.8,72,995/- had not been found to be received as per receipt register on 31.3.2008 as claimed by M/s. Orient Craft Ltd. The partys claim was also cross checked with the file opening register and no such entry for referred claim dated 31.03.2008 was found.
As regards practice of acknowledgment of letter/refund claim by Division/Commissionerate it is mentioned that mostly dated stamp is affixed on partys copy without any sign & letters are entered in receipt register. In some cases letters are acknowledged by putting dated signature with officers stamp.
As regards to any remedial action taken or revised instruction issued by Commissioner it is mentioned that suitable instruction for proper receipt/acknowledgement showing date of receipt, diary no. , signature & name of proper officer by field formation has been issued. 1.5 Thus, in this report, the Commissioner has confirmed that in office of the Central Excise Division-III, Gurgaon, there was, indeed, a practice of acknowledgement of the letters received from the assessees by putting a dated stamp without signature on the partys copy. He also mentioned that the captioned refund claim filed by the appellant for the period April, 2007 to June, 2007 for the amount of Rs.8,72,995/- was not found received as per the receipt register on 31.03.2008 and in the file opening register, there was no entry regarding this refund claim.
2. Heard both sides.
2.1 Shri A.K. Jain, General Manager of the appellant company representing the appellant pleaded that refund claim for April, 2007 to June, 2007 period had been filed well in time i.e. 31.3.2008 and had been acknowledged by putting the Divisional officers stamp with date but without any signature of the receiving person on Appellants copy, that this was the practice in the Divisional Office of acknowledging the letters received from the assessees as well as the refund claims filed by them, that the refund claims filed for the previous period as well as later period have also been acknowledged in the same manner, that when after submitting of the refund claim to the Division Office on 31.3.2008, the refund claim was not received, they wrote several letters to the Department on 21.8.2008, 5.9.2008 and 4.12.2008 and on being informed by the Department that the claim had not been received, they re-submitted the claim on 28.2.2009, wherein, it has been clearly mentioned that this refund claim had earlier been submitted on 31.3.2008 and proper acknowledgement for the same had been obtained, that the Commissioner has now confirmed that there was a practice of receiving the letters and acknowledging the letters/applications received from the assessee only by putting a dated stamp but without signature of the persons receiving the same, that in view of this, the department cannot say that just because there was no signature on the acknowledge of the department in respect of the submissions of their refund application on 31.3.2008, no refund application had been submitted on that date and that since the refund application was submitted on 31.3.2008 and was within the time, the impugned order upholding the refund claim as time barred is incorrect.
2.2 Shri A. Khanna, ld. Departmental Representative defending the impugned order, pleaded that though the Commissioner confirms that there was practice in the Division Office of acknowledging the letters and applications received from the assessees only by putting dated stamp and without signatures of the persons receiving the letters/applications, just on this basis, it cannot be assumed that the appellants refund application had, indeed, been received in the Divisional Office on 31.03.2008, that the Commissioner in his report also stated that the receipt register as well as file opening register of the Division Office have been checked and the appellants refund claim for an amount of Rs.8,77,995/- claimed to have been submitted on 31.3.2008, is not figuring in the receipt register or in the file opening register, that from this, it is clear that the refund claim had not been submitted on 31.3.2008 and had been submitted on 18.2.2009 and hence the same had been rightly rejected as time barred.
3. I have carefully considered the submissions from both the sides and perused the records.
4. The appellants plea is that the refund claim for the period from April, 2007 to June, 2007 had been submitted by them in the divisional office on 31.3.2008 and this is clear from the fact that their copy of the refund claim bears a dated stamp of the divisional office and that in the division office, there was a practice of acknowledging the letters in this manner without signatures of the person receiving the letters/applications. This is also clear from the fact that the refund applications submitted earlier as well as submitted at the later stage is also acknowledged in the same manner. I find that the copy of this refund claim which was submitted on 10.02.2009 has also been acknowledged in the same manner just by putting dated stamp of the divisional office without any signature of the person receiving the same. Similarly, I find that the refund claim for the period January, 2007 to March, 2007 period submitted on 27.11.2007 has also been acknowledged exactly in the same manner just by putting dated stamp of the divisional office without signature of the receiving person. The Commissioners report submitted also confirms that there was such a practice of acknowledging the letters received from the assessees in this manner i.e. just by putting dated stamp of the divisional stamp but without signature of the receiving persons. In view of this, just because the acknowledgment produced by the appellant in respect of submission of their refund application for April, 2007 to June, 2007 period on 31.3.2008 does not contain the signature of the receiving persons or that there is no entry in the register or file opening register, it cannot be inferred, that the refund claim was not filed on 31.3.2008 as there was a practice of acknowledging the refund claims/letters received from the assessees just by putting a dated stamp by the divisional office but without signatures and there was always possibility that the refund claims received may have been mis-placed. The benefit of doubt, therefore, has to be given to the appellant.
5. In view of this, the impugned order upholding the rejection of refund application on the ground of time bar is not sustainable. The same is set aside and the matter is remanded to the original adjudicating authority for examining the refund claim and deciding the same on merits. The appeal stands disposed of as above.
( Rakesh Kumar ) Member (Technical) Ckp.
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