Custom, Excise & Service Tax Tribunal
Positive Packaging Industries Ltd vs Commissioner Of Customs (Imports), ... on 13 November, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/379/12-MUM [Arising out of Order-in- Appeal No. 20(GR.CRC-I) 2012 JNCH IMP-15 dtd. 25/1/2012 passed by the Commissioner of Customs(Appeals) JNCH, Sheva Mumbai II] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) =======================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
=======================================================
Positive Packaging Industries Ltd.
:
Appellant
VS
Commissioner of Customs (Imports), JNCH, Nhava Sheva
:
Respondent
Appearance
Shri. R.K. Shetty, Advocate for the Appellant
Shri. Senthil Nathan, Dy. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 13/11/2014
Date of decision 13/11/2014
ORDER NO.
Per : Ramesh Nair
The appeal is directed against Order-in- Appeal No. 20(GR.CRC-I) 2012 JNCH IMP-15 dtd. 25/1/2012 passed by the Commissioner of Customs(Appeals) JNCH, Nhava Sheva Mumbai -II, wherein Orderin-Original No. 2843/2011AM(I) dated 18/3/2011passed by Dy. Commissioner of Customs CRC-I JNCH was upheld. The fact of the case is that the appellant filed refund claim on 10/6/2009 of Rs. 1,48,946/- towards excess paid CVD. The Dy. Commissioner of Customs CRC-I, JNCH in his finding has found that on merit, the refund is admissible, however he rejected the claim on the issue limitation on the ground that the duty for which refund was sought for was paid on 10/12/2008 and claim was submitted 10/6/2009 i.e. after expiry of 06 months of payment of duty. Accordingly, held that the refund claim fails on the issue of limitation. As regard unjust enrichment, Dy. Commissioner held that since the refund claim filed on limitation, the issue of unjust enrichment is futile exercise. Though the appellant had submitted the CA Certificate and Cenvat credit Certificate issued by Superintendent of Central Excise, he did not go into these details. Accordingly, the appellant approached the Commissioner (Appeals), the Commissioner(Appeals) held that there is delay of one day of the expiry of six months from the date of payment of duty. Aggrieved with the Commissioners (Appeals) order, the appellant is before me.
2. Shri. R.K. Shetty, Ld Counsel for the appellant submits that there is no dispute that the duty was admittedly paid on 10/12/2008 and refund claim filed on 10/6/2009. He submits that for computation of period of limitation, in terms of Section 9 of General Clauses Act, 1897, the first day has to be excluded for starting any period. Accordingly, for computing the period of six months in the present case the day of filling refund i.e. 10/12/2008 must be excluded, therefore period of six months shall be reckoned from 11/12/2008. If it is so, then six months shall be completed on 10/6/2009 on which date the appellant has filed the refund claim. Therefore the refund was filed within the stipulated time period of six months, thus there is no delay in filling refund claim. He submits that since there is no delay, the Dy. Commissioner and Commissioner (Appeals) ought not to have rejected the refund claim of the appellant on the ground of time bar. Shri P. K. Shetty also referred to Section 12 of Limitation Act, 1963, wherein it is provided that day from which a period is to be reckoned shall be excluded. He also placed reliance on the following case laws.
[1992(61)E.L.T. 732(Tribunal)] CC E Vs. S.A.I.L., Rourkela Steel Plant [2002(144) E.L.T. 649(Tri-Del)] CC E Vs. Rollatainers Ltd.
[2003(152) E.L.T. 375(Tri.-Del)] LML Ltd. Vs. CC E Kanpur.
3. Shri. Senthil Nathan, ld Dy. Commissioner (A.R.) appearing for Revenue reiterates the findings of the impugned order.
4. I have carefully considered the submissions made by both the sides.
5. The refund claim of the appellant rejected only on the ground that limitation, as there is delay of one day as per the findings of the lower authority. Admittedly the duty was paid on 10/12/2008 and the refund was filed on 10/6/2009. I have carefully read the provisions of Section 9 of General Clauses Act, 1897 and Section 12 of Limitation Act, 1963, which are reproduced below:
Section 12 of Limitation Act, 1963
12. Exclusion of time in legal proceedings (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
3) Where a decree or order is appealed from or sought to be revised or reviewed, or when an application is made for leave to appeal from a decree or order the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
Explanation - In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for copy thereof is made shall not be excluded.
Section 9 in The General Clauses Act, 1897
9. Commencement and termination of time.
(1) In any 18 [Central Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word from, and, for the purpose of including the last in a series of days or any other period of time, to use the word to.
(2) This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.
From the reading of both the above Acts, it is mandated that while computing the period of limitation, first day from which such period to be reckoned shall be excluded. In the present case, the first date is 10/12/2008 and last date is 10/6/2009. If in accordance with the above statutory provisions the first date i.e. 10/12/2008 is excluded, then the period of six months shall be reckoned from 11/12/2008, accordingly six months will complete on 10/6/2009. The appellant has filed the refund claim on 10/6/2009, this clearly shows that the appellant has filed their refund claim within stipulated time of six months.
5.1 Similar issue has been dealt by the Division Bench of this Tribunal in the case of [1992(61)E.L.T. 732(Tribunal)] CC E Vs. S.A.I.L., Rourkela Steel Plant, wherein it has held :
3. We have considered the arguments of both the sides. We fmd that the order of the Collector (Appeals) holding that the original refund claim was not hit by time bar is correct in law. In computing the time-limit the date of the event with reference to which time-limit is to be calculated is to be excluded. The Collector (Appeals) has relied upon the Tribunal decision which has been referred to above. In the said decision Section 12 of the Limitation Act has been relied upon. The said section lays down that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. Incidentally on this point he pointed out that this provision would apply only to suit or appeal or application and would not directly regulate the time-limit applicable for a refund claim filed under Section 11B of the Central Excises and Salt Act. Actually, the provisions of Section 9 of the General Clauses Act would squarely apply to the present type of case. Under the said provision, it has been laid down that any act or regulation made after the commencement of this Act, it shall be sufficient for the purpose of excluding the first in a series of dates or any other period of time, to use the word from. Sub-section (2) of the said Section 9 lays down that this section applies also to all Central Acts made after the third day of January, 1868. In the book Principles of Statutory Interpretation by Justice G.P. Singh (4th Edition,1988, page 579) some cases have been cited which will illustrate the correct procedure to be applied in computing the time-limit. The same are as follows :-
The decisions in the early period were not quite uniform but ever since 1808 when Lester v. Garland was decided, the rule is well established that where an act is to be done within a specified time from a certain date, the day of that date is to be excluded.
The powers of a company for compulsory purchase of lands which were to cease after expiration of three years from the passing of the Act, which was assented to on August 9,1899, were held not to cease until the midnight of August 9,1902.
When a notice was required to be served within fourteen days from the commission of the offence, a notice served at 8 a.m. on January 25, was held to be valid even though the offence was committed at 7.15 a.m. on January 11."
4. It has also been observed by the learned author that the General Rule of exclusion of the first day and the inclusion of the last day is subject to a contrary intention indicated in the statute. Applying the above principle we fmd that in Section 11B of the Central Excises and Salt Act relating to refund claims the relevant expression is that a person claiming refund may make an application for refund ...... before expiry of six months from the relevant date. In view of the clear position regarding the effect of the word from, the proper procedure would be to exclude the relevant date and start the period of limitation of six months from the following day. The point raised in the appeal before us that the date of computation can never be by excluding 29-2-1988, has got no legal basis. Similarly, nothing much turns on the argument that since the Act specifically provides the relevant date which in the present case is the date of payment of duty, i.e. date of debit in the P.L.A., the Limitation Act cannot be made applicable. The fact that the relevant date has been defined in the Central Excises and Salt Act does not affect a general principle as to how to compute the period of limitation. The provisions of the Limitation Act and the General Clauses Act are to be applied for interpreting certain general situations like the period of limitation prescribed under any act. In view of the above circumstances, the decision of the Collector of Central Excise (Appeals) cannot be faulted. We, therefore, uphold the same and dismiss the appeal.
In the case of [2002(144) E.L.T. 649(Tri-Del)] CC E Vs. Rollatainers Ltd. also similar issue has been decided as under:
3. The brief facts of the case are that the respondents? filed rebate claim in respect of the goods exported by them. The goods were shipped for export on 3-10-97 and rebate claim was filed on 3-4-98. The Commissioner (Appeals) in the impugned order held that rebate claim is within the period limitation, that is, of six months.
4. The contention of the Revenue is that when the goods? were shipped for export on 3-10-97, six months will expire on 2-4-98, therefore, the rebate claim filed on 3-4-98 is one day late after expirty of six months.
5. The issue in respect of calculation of the time? period is already settled by the Tribunal in the case of Collector of Central Excise v. S.A.I.L., Rourkela Steel Plant, reported in [1992 (61) E.L.T. 732 (Tribunal)]. The Tribunal held that in view of the clear decision regarding the effect of word From which has also been used in Section 11B of Central Excises & Salt Act, 1944 the proper procedure would be to exclude the relevant date therein and start the period of limitation of six months from the following day. The fact that the relevant date is defined in the Central Excise Act does not affect a general principle as to how to compute the period of limitation. In view of the above decision of the Tribunal, I find no infirmity in the impugned order. The appeal is rejected.
From the provision of Section 9 of General Clauses Act, 1897 and Section 12 of Limitation Act, 1963 and also from the judgments referred above, it is crystal clear that in the present case, the date of deposit i.e. 10/12/2008 shall be excluded and six months shall be reckoned from 11/12/2008 and therefore the appellants refund claim was filed on last day of completing the six months period i.e. 10/6/2009, accordingly the refund claim is not time bar.
6. In view of the above discussions and settled legal position, I set aside the order of the lower authority and allow the appeal. Needless to say that the original authority shall grant the refund to the appellant subject to the satisfaction as regard provision of unjust enrichment. The sanctioning authority is also directed to dispose of the refund claim of the appellant within one month from the date of receipt of this order. The appeal is disposed of in the above terms.
(Dictated in court) Ramesh Nair Member (Judicial) sk 9