Custom, Excise & Service Tax Tribunal
Sucden India P Ltd vs Mumbai South on 11 January, 2019
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE
TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. I
APPEAL NO. ST/86033/2018
(Arising out of Order-in-Appeal No. IM/CGST/A-I/MUM/69/17-18
dated 30.11.2017 passed by the Commissioner of Central Tax
(Appeals-I), Mumbai.)
M/s Sucden India Pvt. Ltd. Appellant
Vs.
CCGST, Mumbai South Respondent
Appearance:
Shri Anand Desai, C.A. for Appellant
Shri Dilip Shinde, Assistant Commissioner (AR) for Respondent
CORAM:
HON'BLE SHRI S K MOHANTY, MEMBER (JUDICIAL)
Date of Hearing: 24.07.2018
Date of Decision: 11.01.2019
ORDER NO. A/85053 / 2019
Per: S K Mohanty
The issue involved in this appeal relates to the time limit within which the refund application has to be filed under the statute. In this case, the appellant had filed the refund application under Notification No. 41/2012-ST dated 29.06.2012, claiming refund of Service Tax paid on the input services, used for export of the output service. The refund application was filed on 21.04.2016. The matter was adjudicated vide order dated 24.08.2016, wherein the refund claim was favourably considered by the original adjudicating authority. Feeling aggrieved with the said adjudication order, Revenue had filed appeal before the Learned Commissioner (Appeals). The appeal of Revenue was disposed of vide impugned order dated 30.11.2017, ST/86033/2018 2 wherein the learned Commissioner (Appeals) has set aside the adjudication order dated 24.08.2016 and allowed the appeal in favour of Revenue, holding that the refund claim is barred by limitation of time, in terms of the provisions of Section 11B of the Central Excise Act, 1944 made applicable to the service tax matters under Section 83 of the Finance Act, 1994. Feeling aggrieved with the impugned order, the appellant has preferred this appeal before the Tribunal.
2. The Learned Consultant appearing for the appellant submitted that the refund application was initially filed on-line on 14.04.2016 and due to error in the server, the same was not uploaded in the system and thereafter, was manually filed on 21.04.2016. With regard to the period of delay between the intervening days, he submitted that 14th to 17th of April, 2016 and 19.04.2016 were public holidays and the Service Tax Department was closed. He further submitted that on 20.04.2016, the signed refund application was received from Delhi office and as per the directions of the jurisdictional Assistant Commissioner, the refund application together with the supporting documents were filed before the department on 21.04.2016. Thus, the Learned Consultant submitted that delay in filing of refund application should be condoned in the interest of justice. In support of his stand that delay in filing of refund application can be condoned in the circumstances of the case, he has relied on the judgment of Hon'ble Supreme Court in the case of Raj Kumar Dey and Others Vs. Tarapada Dey and Others - AIR 1987 SUPREME COURT 2195 and the judgment of Hon'ble Bombay High Court in the case of Rama Aba Singale and Others Vs. Sumitrabai and Another - AIR 1979 BOMBAY 14 and Pratapsing Ganpatrao Kadam Vs. ST/86033/2018 3 Maruti Raghunath Todkar - AIR 2003 BOMBAY 11, also the judgment of Hon'ble Madras High Court in the case of S. Ramachandra Iyer Vs. M.A. Annamalai Chettiar and Others - AIR 1968 MADRAS 103 (V 55 C
25) and Pratapchand and Others Vs. Lakshman Prasad Gupta - AIR 1967 MADRAS 98 (V 54 C 26).
3. On the other hand, Learned DR appearing for the Revenue reiterated the findings recorded in the impugned order. He further submitted that since the statute mandates filing of refund application within one year from the relevant date, such statutory time limit should be strictly adhered to by the statutory authorities and no discretion has been vested to condone the delay in late filing of the refund application. To support of such stand, the Learned DR has relied on the judgment of Hon'ble Supreme Court in the case of Miles India Limited Vs. Assistant Collector of Customs - 1987 (30) ELT 641 (SC), Collector of Central Excise, Chandigarh Vs. Doaba Co-operative Sugar Mills - 1988 (37) ELT 478 (SC) and Assistant Collector of Customs Vs. Anam Electrical Manufacturing Company - 1997 (90) ELT 260 (SC). In addition, the Learned DR also relied on the recent decision of the Larger Bench of this Tribunal in the case of Veer Overseas Ltd. Vs. Commissioner of Central Excise, Panchkula [2018- TIOL-1432-CESTAT-CHD-LB].
4. Heard both sides and perused the case records.
5. In this case, the appellant had filed the refund application, claiming refund of service tax paid on the input services. The refund application was filed under notification no. 41/2012 ST dated ST/86033/2018 4 29.06.2012. Filing of refund application is governed under the provisions of Section 11B of the Central Excise Act, 1944, as made applicable to the service tax matters under Section 83 of the Finance Act, 1994. The statute provides that the refund application should be filed with the competent authority before the expiry of one year from the relevant date. In view of date of issue of LEO, the refund application was required to be filed on or before 14.04.2016. The appellant contended that it had tried to file refund claims online on 14.04.2016, but failed due to upload of the same and the refund application was manually filed on 21.04.2016. It has further been stated that on 14th, 15th and 19th of April 2016, the office of the Service Tax Department was closed due to public holidays declared by the Government and after receiving the signed documents from Delhi, the refund application along with supporting documents was filed on 21.04.2016 before the jurisdictional service tax authorities. The appellant has not furnished any information with regard to non-filing of the claim application on 18.04.2016 and on 20.04.2016, which were not declared as public holidays and the Service Tax Department was functional during those days. It is evident that the refund application was filed beyond the stipulated time frame prescribed under Section 11B of the Act. The authorities functioning under the statute are guided by the provisions contained therein. No discretion has been vested under the statute to condone the delay in late filing of the refund application. In context with adherence of the prescribed time limit for entertaining the refund application, the Hon'ble Supreme Court in the case of Miles India Limited (supra) have endorsed the views expressed by the Tribunal that the customs authorities acting under the Act were justified in disallowing the claim ST/86033/2018 5 of refund, as they were bound by the period of limitation provided under Section 27(1) of the Customs Act, 1962 (pari materia to Section 11B of the Central Excise Act, 1944). Further, in the case of Daoba Co-operative Sugar Mills (supra), the Hon'ble Supreme Court have also held that if the proceedings have been taken under the Central Excise Act by the department, the provisions of limitation prescribed in such Act alone will prevail with regard to applicability of the time limit for filing the refund claim application. In this case, since the appeal of Revenue was allowed by the Learned Commissioner (Appeals) on the ground of limitation, holding that the claim application was lodged after the prescribed time limit, I do not find any infirmity therein. The ratio of judgments relied on by the Learned Consultant for the appellant are not applicable to the facts of the present case inasmuch as the subject matter of dispute in those decided cases were not in context with the Central Excise/Service Tax statute, which are special enactments, providing for specific time limit for filing of the refund application and consideration of the same, within the stipulated frame work by the authorities created there under.
6. In view of the above discussions, I do not find any merits in the appeal filed by the appellant. Accordingly, same is dismissed.
(Order pronounced in Court on 11.01.2019) (S K Mohanty) Member (Judicial) Prasad