Custom, Excise & Service Tax Tribunal
Shah Tiles Pvt Ltd vs Ahmedabad-Iii on 24 November, 2022
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
REGIONAL BENCH- COURT NO. 3
Excise Appeal No. 10087 of 2021
(Arising out of OIA-AHM-EXCUS-003-APP-041-20-21 dated- 19/11/2020 passed by
Commissioner of Central Excise, Customs and Service Tax-AHMEDABAD)
SHAH TILES PVT LTD ........Appellant
Survey No.53/P, Village- Karoli, At & Po- Hajipur, Ta- Kalol
Gandhinagar
Gandhinagar, Gujarat
VERSUS
C.C.E. & S.T.-AHMEDABAD-III ......Respondent
Custom House... 2nd Floor, Opp. Old Gujarat High Court, Navrangpura, Ahmedabad, Gujarat - 380009 Appearance:
Shri Vipul Khandhar, Chartered Accountant appeared for the Applicant Shri Prakash Kumar Singh, Superintendent (AR) for the Respondent CORAM: HON'BLE MEMBER (TECHNCIAL), MR. RAJU Final Order No. A / /2022 DATE OF HEARING: 24.11.2022 DATE OF DECISION: 24.11.2022 RAJU This appeal has been filed by M/s. Shah Tiles Pvt Ltd against rejection of their refund claim on the issue of limitation.
2. The case was booked against the appellant by DGECI and during the investigation period the appellant paid Rs 15 Lacs as deposit of duty. The case booked by DGECI was decided by the Commissioner (Appeals) and partial relief on the ground of limitation was granted to the appellant. However, for the purpose of quantification on the basis of limitation period, the matter was remanded to the Original Adjudicating Authority. The said order setting aside the demand for the extended period was challenged by the revenue before the Tribunal. However, the said appeal was withdrawn by the revenue on account of Litigation Policy. Consequently the order of the commissioner (Appeal) remanding the matter to the Original
2|Page E/10087/2021 Adjudicating Authority for the purpose of quantification of demand on the basis of limitation becomes final.
3. Learned counsel argued that no order has been passed by the Original Adjudicating Authority in the remand proceedings. However, there was no evidence in support of the said claim. The appellant had filed the refund claim of the full amount paid by them. The said refund claim was rejected by the lower authorities holding that the relevant date for the purpose of claiming refund would be the date of order of the Commissioner (Appeals) which remanded the matter back to the Original Adjudicating Authority.
3.1 Learned Counsel argued that the refund has not matured till now and the same will mature only after the Original Adjudicating Authority quantifies the due demand in terms of the remand order of the Commissioner (Appeals). Learned counsel relied on the decision of Tribunal in the case of USV Ltd vs. Commissioner of Service Tax, Mumbai-II- 2016 (45) STR 83 (Tri.- Mumbai)
4. Learned AR vehemently argued that the relevant date for the purpose of refund claim would be the date on which the Commissioner(Appeal) passed the order remanding the matter to the Original Adjudicating Authority after allowing the benefit of limitation. Learned AR relied on the decision of Hon'ble High Court in the case of Ajni Interiors Vs. Union of India in SCA No. 10435/18 which was upheld by the Hon'ble Apex Court - SLP (Civil) Diary No. 3952/2020 .
5. I have considered the rival submission. I find that the issue regarding quantification of the confirmed demand is to be finalized by Original Adjudicating Authority in remand proceedings. The Commissioner (Appeals) in the remand order has not quantified the amount of duty confirmed. While learned counsel is claiming that no order in the remand
3|Page E/10087/2021 proceedings has been passed but no evidence to that effect has been produced. In my considered opinion the claim filed by the appellant is pre- mature till the quantum of demand confirmed is quantified by the department in the remand proceedings.
5.1 In view of above the impugned order is set aside and the matter is remanded to the Adjudicating Authority to examine afresh. The relevant date for the purpose of refund would be the point of time when the duty amount actually payable by the appellant is quantified in the remand proceedings.
6. Accordingly, the impugned order is set aside and matter is remanded to the Original Adjudicating Authority to decide a fresh in light of the above observation.
(Dictated & Pronounced in the open court ) RAJU MEMBER (TECHNICAL) Geeta