Custom, Excise & Service Tax Tribunal
M/S. Kisan Coop. Sugar Factory Ltd vs Cce, Meerut-I on 13 September, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No. 2, R.K. Puram, NEW DELHI COURT-II Service Tax appeal No. 1787/2010-SM Date of hearing/decision: 13th September, 2011 M/s. Kisan Coop. Sugar Factory Ltd., Appellants Reptd. By Shri Vikrant Kakaria, Advocate Versus CCE, Meerut-I Respondent
Reptd. By Shri B.L. Soni, D.R. Coram: Honble Shri D.N. Panda, Judicial Member;
FINAL ORDER NO. DATED Per D.N. Panda:
Learned Counsel Sri Kakaria vehemently opposed the first appellate order which has denied him refund. According to first appellate order, refund application was filed on 12.2.2009 although the Appellant was successful before Honble High Court of Allahabad on 11.3.2005 and by abnormal and unreasonable delay, the appellants claim lapsed. But Sri Kakaria submit that in similar circumstances Honble High Court of Madras has granted relief in the case of DCW Ltd. vs. Asst. Commissioner of Customs, Madras 2003 (157) ELT 510 (Mad.). Similar relief was also granted by Tribunal in the case of Star Coolers & Condensers Pvt. Ltd. vs. CCE, Nashik 2010 (262) ELT 669 (Tri. Mumbai) and by Honble High Court of Calcutta in the case of Sukhi India Pvt. Ltd. vs. UOI 2010 (258) ELT 95 (Cal.). Therefore, his prayer is that the appellant shall succeed to get refund irrespective of lapse of time. Shri Kakaria, further submits that limitation was prescribed much later in law incorporating clause (ee) to Explanation (B) of subsection (5) to section 11B Central Excise Act, 1944.
2. On the other hand learned D.R. supports the order of the authorities below submitting that when the appellant claimed refund after 4 years of disposal of writ petition by Honble High Court and there was no protest lodged in the manner prescribed by law, mere mention of protest in challan dated 12.4.2004 does not entitle the appellant to belated refund claim.
3. Heard both sides and perused the record.
4. There is no dispute about the dates referred to above. The appellant kept quiet for 4 (four) years after disposal of writ petition by Honble High Court. The claim was not made within a reasonable period. Therefore, the appellant fails to get benefit of Tribunals decision in VAM Organics Ltd. 2006 (195) ELT 320 (Tri. Del.). There is no difficulty to agree with the learned Counsel that contesting the matter before High Court is itself a protest. But the appellant when succeeded before Honbel High Court did not come forward to make claim forthwith or at least within a reasonable period of time. Limitation prescribed by newly enacted provision is to bar belated claims. When lis come to an end the parties should exercise their right without delay. The right accrues is enforceable within a reasonable period. Law of limitation gives valuable right to peace. In absence of any evidence on record to appreciate that the appellant was prevented to make refund claim for reasons beyond its control, the appellant has no claim to sustain. Accordingly appeal is dismissed.
(Dictated & pronounced in the Open Court.) (D.N. PANDA) JUDICIAL MEMBER RK 3 ST/1787/10-SM