Custom, Excise & Service Tax Tribunal
M/S. Rajasthan Spinning & Weaving Mills ... vs Cce, Jaipur-Ll on 25 November, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Excise Appeal No. 3555-3558/2006-EX(SM)
[Arising out of Order-In-Appeal No. 444-447(HKS)CE/JPR-ll/2006 dated 14.08.2006 passed by CCE, Jaipur-ll]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
M/s. Rajasthan Spinning & Weaving Mills Ltd. Appellant
Vs.
CCE, Jaipur-ll Respondents
Coram: Honble Ms. Archana Wadhwa, Judicial Member Appearance:
Shri Hemant Bajaj, Advocate for the Appellant Shri Promod Kumar, AR for the Respondent Date of Hearing: 25.11.2013 FO ORDER NO._58408-58411/2013_ Per Ms. Archana Wadhwa:
The dispute in all the present appeals is the refund claims, filed by the appellant, who is exporter, in terms of the provision of Rule 5 of the Cenvat credit Rule 2004. In terms of notification No. 11/2002-CE (NT) dated 01/03/2002, the said claim have to be filed only once in one months. Inasmuch as the appellant have filed refund claims more than once in a month the Commissioner (Appeals) has rejected the same.
2. From the order of Commissioner of (Appeals), it is seen that when his attention was drawn to his own earlier order wherein similar circumstances, the appellate authority has condoned the procedural irregularities and has held that the same cannot be adopted for denying substantive benefit, he agreed that he has condoned the procedural lapse in filing refund claims more than once in a month, for the earlier period but observed that procedural lapse cannot be condone repeatedly in the present appeal. Accordingly, he rejected the appeal.
3. I find that the legal issue is no more res-integra. Though Rule 5 read with the notification require filing of refund claims once in a month but the fact remains that such refunds are otherwise due to the appellant. The Tribunal in the case of Amrutanjan Ltd. Vs. Commissioner of Central Excise, Chennai, 2001 (128) ELT 255 (Tri-Chennai) has held that though the notification require filing of refund claim only once in each quarter, the filing of more refund claims is only a procedural lapse and cannot result in denial of beneficial legislation. Similar in the case of Hotline Teletube & Components Ltd. Vs. CCE, Indore, 1998 (102) ELT 33 (Tribunal) it was held that restriction of filing two refund claims in the same quarters is only a procedural violation and should not result in denial of substantive right of refund. To the same effect is the Tribunal decision in the case of CCE, Bombay M/s. Gupta Soaps 1999 (111) ELT 720 (Tribunal) and in the case of CCE, Ahmedabad M/s. Balkrishna Textiles Ltd. 2005 (192) ELT 912 (Tri. - Mumbai) and in the case of Nemlaxmi Books (I) Ltd. 2009 (246) ELT 626 (Tri.- Ahmd.).
4. Inasmuch as issue stand decided by precedent decisions, and in the absence of the evidence that the appellant is otherwise not entitled to the refund, I find no justification for rejection of refund claims. Accordingly, the impugned orders are set aside the appeals are allowed with consequential relief to the appellants.
(Pronounce in the open Court) (Archana Wadhwa) Member (Judicial) Jyoti* ??
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