Custom, Excise & Service Tax Tribunal
M/S Rawmin Mining & Industries Pvt Ltd vs Commissioner Of Central Excise, ... on 16 November, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad -ooOoo- Appeal No. : E/211-219/2010 Arising out of OIA-29-37/2009-BVR-/HKJ/COMMR-A-/AHD dt 16.12.2009 passed by the Commissioner of Central Excise, Customs and Service Tax (Appeals) - BHAVNAGAR M/s Rawmin Mining & Industries Pvt Ltd - Appellant(s) Vs Commissioner of Central Excise, Customs and Service Tax (Appeals) BHAVNAGAR - Respondent(s)
Represented by For Assessee : Shri Amal Paresh Dave, Advocate For Revenue : Shri L Patra, Authorised Representative For approval and signature :
Dr. D.M. Misra, Hon'ble Member (Judicial) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CORAM :
Dr. D.M. Misra, Hon'ble Member (Judicial) Date of Hearing /Decision :16/11/2016 ORDER No. A/11562-11570/2016 dt 16/11/2016 Per : Dr D.M. Misra, Heard both sides.
2. These appeals are filed against OIA-29-37/2009-BVR-/HKJ/COMMR-A-/AHD dt 16.12.2009 passed by the Commissioner of Central Excise, Customs and Service Tax (Appeals) BHAVNAGAR.
3. Briefly stated facts of the case are that refund claims have been filed under Rule 5 of Cenvat Credit Rules on 09.5.2008 for the period July 2007 to January 2008; the said refund was on account of non-utilisation of Input Service Tax credit lying in balance on account of export of finished goods. The refund claim was retuned by the Asstt. Commissioner, Service Tax, on 18.8.2008 observing that that the authority to process the said refund is with Central Excise Dept. in view of CBEC Circular dt.24.10.2007. Consequently, the appellant filed the refund claim on 04.9.2008 with the Asst. Commissioner of Central Excise. A show cause Notice was issued to them proposing rejection of the said claim on the ground of limitation. On adjudication, the refund claim was rejected on 10th June, 2009, on the ground of time bar by the Asstt. Commissioner, Central Excise, Junagadh. Aggrieved, the Appellant preferred appeal before the Ld. Commissioner(Appeals), who in turn rejected their Appeal. Hence, the present Appeal.
4. The Ld. advocate submitted that the issue is no more res integra being settled by the Honble Gujarat High Court in the case of Commissioner of Central Excise Vs. AIA Engg Ltd. (21)STR.367 (Guj.).
5. The Ld AR for the Revenue reiterated the finding of the Ld. Commissioner (Appeals) and referred the judgment of the Honble High Court of Bombay in the case of Everest Flavours Ltd Vs Union of India 2012(282)ELT.481 (Bom).
6. The short issue needs to be determined is whether the refund claim filed under Rule 5 of CCR,2004 with the wrong authority is barred by limitation. The issue is settled by the Honble Gujarat High Court in AIA Engg. Ltds case. Their Lordships observed as:
7.?We have considered the submissions made by Mr. Ravani and also gone through the orders passed by the authorities below. The Commissioner (Appeals) in his order has clearly observed that on verification of the records, it was found that first time, the respondent-assessee filed the refund claim to the Deputy Commissioner, Service Tax on 28-2-2008 with acknowledgement with proper authority in time i.e. within 60 days and fulfilled the condition in the Notification No. 41/07-S.T., dated 6-10-2007. He has, therefore, held that the respondent-assessees refund claim of service tax under Notification falls within the purview of the Assistant Commissioner/Deputy Commissioner of the Central Excise having jurisdiction over the factory/manufacturing unit. The concerned authority has returned the claim on 8-4-2008 with a direction to file the claim to the jurisdictional Assistant Commissioner or Deputy Commissioner of Central Excise. He, therefore, found that the application of refund was filed within time limit and this was returned by the authorities and the respondent filed the same after lapse of time and as such, it is not barred by limitation. This finding was confirmed by the Tribunal with an observation that there was no infirmity in the view taken by the Commissioner (Appeals). The Tribunal has also reiterated that the original refund claim was filed within time before wrong authority. As such, subsequent refiling of refund claim beyond the limitation period should not be held against the assessee.
8.?The above findings recorded by the appellate authorities are findings of fact and even otherwise, since the original application for refund was filed within time, though before wrong authority, it cannot be said that the said application was barred by limitation. We are of the view that there is no infirmity in the order passed by the authorities below. No question of law, therefore, arises out of the order of the Tribunal and hence, the appeal is dismissed.
7. Following the principles laid down in the above case, I do not see merit in the impugned Order holding that the refund claim is time barred. In the result, the impugned is set aside and the appeals are allowed with consequential relief, if any, as per law.
(Dictated and pronounced in the Court) (D.M. Misra) Member (Judicial) swami ??
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