Custom, Excise & Service Tax Tribunal
M/S. Tab India Granites Pvt. Ltd vs Cce & St, Chennai-Iii on 18 November, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH, CHENNAI Appeal No. ST/41562/2014 (Arising out of Order in Appeal No. 68/2014 (M-III) (M-III) dated 04.04.2014, passed by the Commissioner of Central Excise & Service Tax (Appeals), Chennai-III) M/s. Tab India Granites Pvt. Ltd. Appellant Versus CCE & ST, Chennai-III Respondent
Appearance Shri R. Karthikeyan, Adv., For the Appellant Shri R. Subramaniyan, AC (AR) For the Respondent/Assessee CORAM Honble Shri P.K. CHOUDHARY, Judicial Member FINAL ORDER No. 41746 / 2015 Date of Hearing/Decision: 18.11.2015 Being aggrieved by the Order of the Commissioner (Appeals) dated 04.04.2014, the appellant M/s. Tab India Granites Pvt. Ltd., preferred this appeal before the Tribunal.
2. The brief facts of the case are that the appellants are the manufacturers of granite slabs falling under Chapter 68 of CETA, 1985 and also exporting the goods manufactured by them under bond. As per Notification No. 41/2007-ST dated 06.10.2007, specified services as detailed in the notification, received and used by the exporter of goods are exempted from the whole of the service tax under Section 66 and 66A of the Finance Act, 1994. Accordingly, the exporter shall claim exemption by way of refund of service tax already paid on the aforesaid specified services, on the basis of the conditions mentioned under Notification No. 41/2007 (supra), superseded vide notification No. 17/2009 dated 07.07.2009. In view of the above notification, the appellant company had filed refund claim of service tax paid on services such as Custom house Agents, Port Services, Courier Charges, Bank Charges etc., received and used by them for the export of the goods manufactured during the period from January 2010 to March 2010 on 07.01.2011.
3. The refund claim was returned to the appellants on 11.03.2011 requesting to resubmit the same along with the documents as mentioned in the letter dated 11.03.2011. Subsequently, the appellants resubmitted the refund claim on 02.05.2011. Thereafter, a letter was addressed to the Range Officer for obtaining the original documents. Finally, the original documents were submitted on 11.11.2011. The Assistant Commissioner, Hosur-I Division, rejected the refund claim of the appellants. Aggrieved by this order of the adjudicating authority, the appellants preferred appeal before the Commissioner (Appeals), who upheld the order of the adjudicating authority. Hence the present appeal.
4. The Ld. Counsel, Shri R. Karthikeyan, Advocate, appearing on behalf of the appellant Company submitted that the refund claim was filed within the stipulated period of one year as prescribed under the Notification No. 17/2009 dated 02.07.2009. The refund claim filed by them was returned on 11.03.2011. The appellants resubmitted the refund claim with all the relevant documents on 02.05.2011. This time the claim was not returned instead a letter has been sent to the Range Officer to obtain the original documents from the appellants. The appellants finally submitted the original documents on 04.11.2011, which was rejected by the lower adjudicating authority as time barred. He further submitted that the delay in submitting the original documents was owing to the reason that their head office is located at Jaipur. Hence the delay. However, he submitted that the claim was filed by them on 07.01.2011, which is well within the period of limitation. Hence, the original date of submission of the refund claim should be taken into consideration for determining the time limit and the date of re-submission cannot be construed as the date of filing of the refund claim for the stipulated period of one year. He relied on the following case laws:-
1. CCE, Delhi Vs. M/s. Arya Exports and Industries 2005 (192) ELT 89 (Del.)
2. Rubberwood India (P) Ltd. Vs. CC, Cochin 2006 (206) ELT 536 (Tri.-Bang.)
5. The Ld. AR, Shri R. Subramaniyan, AC, submitted that the appellants did not file the refund claim with all the original documents and since it was filed beyond the stipulated period of one year, the same was rejected as time barred. He further submitted that though the appellants filed the refund claim originally in the month of January, 2011, the same was returned for want of documents. They again resubmitted after the lapse of two months but without documents. It was only after insistence from the Range Officer, the original documents were submitted by the appellant in November, 2011. He drew my attention to the OIO at page -18 of the paper book, which refers that the appellants are regularly filing the refund claim and otherwise the only claim which got delayed and requested for condonation. He relied on the citation mentioned by the Commissioner (Appeals) in his OIA at page-14 of the paper book.
1. CCE, Kanpur Vs. Lohia Machines Ltd.
1987 (32) ELT 182 (Tri.)
2. General Manager, BSNL Vs. CCE, Guntur 2009 (14) STR 250 (Tri.-Bang.)
3. Peria Karamalai Tea and Produce Co. Ltd. Vs. CCE Coimbatore 1986 (23) ELT 174 (Tri.)
4. Peria Karamalai Tea and Produce Co. Ltd. Vs. CCE 1996 (88) ELT A127 (S.C.)
6. Heard both sides and on perusal of the records, I find that the refund application was filed within the stipulated period of one year from the date of export. The period involved is January to March, 2010 and the appellants have filed the refund claim on 07.01.2011, which was returned in order to comply with the statutory requirement and the same was resubmitted on 02.05.2011 and finally on pointing out the defects, the same was rectified and the original documents were submitted on 04.11.2011. The Tribunal in the case of Rubberwood India (P) Ltd. Vs. CC, Cochin (supra) has held that the late of limitation should be taken from the original date of filing of refund claim. Further, I find from the records that there has been an amendment under Section 11 B w.e.f. 26.05.1995, which stipulates that the date of filing the refund claim is the date on which claim was filed initially. Further, on going through the decision in the case of Peria Karamalai Tea and Produce Co. Ltd. (supra), which has been cited by the Commissioner (appeals) in his OIO, I find that the Honble Supreme Court Bench comprising of Honble Mr. Justice J.S. Verma and Honble Mr. Justice B.N. Kirpal on 21-3-1996 has dismissed the Civil Appeal No. 3850 of 1986 filed by Peria Karamlai Tea & Produce Co. Ltd., against the CEGAT Order No. 406/85-D, dated 21st November, 1985 and reported in 1986 (23) E.L.T. 174 (Tribunal) (Peria Karamalai Tea & Produce Co. Ltd. v. Collector) has held as under:-
The Appellate Tribunal in its order in question had held that when the refund claim is presented to the Superintendent of Central Excise who, after necessary verification, forwarded it to the Assistant Collector of Central Excise, the time limit for filing the refund claim is to be computed from the date of submission of the refund claim to the Superintendent, Central Excise.
The Tribunal also held that Rule 11 of the Central Excise Rules, 1944 after its amendment on 6-8-1977 applies to all refund claims and so also the time limit of six months provided thereunder. Respectfully following the ratio of the order cited above, I hold that the application for refund was filed within time and the same is not barred by limitation.
7. In this view of the matter, since the claim has to be treated as having been filed on 07.01.2011 and, therefore, within time, the impugned order is therefore set aside. The matter is remanded to the original authority to decide the case on merits by giving opportunity of hearing to the appellants and the matter should be decided within three months from the date of receipt of this order. The appeal is thus allowed by way of remand.
(Order dictated and pronounced in the Open Court) (P.K. CHOUDHARY) Judicial Member BB 1