Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S.Lukwah Tea Estate on 3 July, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Stay Petition No.SP-80164/13
&
Appeal No.Ex.Ap.749/12
(Arising out of Order-in-Appeal No.31/DIB/CE(A)/GHY/12 dated 19.09.2012 passed by the Commissioner(Appeals) of Customs & Central Excise, Guwahati.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL)
HONBLE DR. I.P. LAL, MEMBER(TECHNICAL)
1. Whether Press Reporters may be allowed to see
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
Commissioner of Central Excise, Dibrugarh
Applicant (s)/Appellant (s)
Vs.
M/s.Lukwah Tea Estate
Respondent (s)
Appearance:
Shri S.Chakraborty, A.C.(A.R.) for the Appellant Smt.Chandreyi Alam (Gupta), Advocate for the Respondent CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical) Date of Hearing:- 03.07.2013 Date of Pronouncement :- 03.07.2013 ORDER NO.S-433/A-186/KOL/13 Per Dr. D.M. Misra.
1. This is an application filed by the Revenue seeking stay of the operation of the Order-in-Appeal No.31/DIB/CE(A)/GHY/12 dated 19.09.2012.
2. While disposing the Miscellaneuos Application filed by the Revenue for early hearing of the stay application, pursuant to the direction of the Honble High Court at Guwahati, we have directed the Revenue as well as the Respondent to file copies of RT-12 referred to by the Commissioner(Appeals) in the impugned order. The relevant RT-12 submitted on 5.1.2001 by the respondent relating to the month of December has now been placed before us.
3. The Ld.A.R. for the Revenue has submitted that the copy of RT-12 filed by the respondent with the department, does not show any endorsement on the last page of the RT-12 return relating to the expansion of the existing capacity by the Respondent. According to him, the copy of the extract of the last page of the RT-12 return filed by the respondent, since not the same as available with the department, therefore, the endorsement made in the Respondents copy cannot be accepted. The Ld.A.R. further submitted that the observation made by the Ld.Commissioner(Appeals) at para 13 of the impugned order is extraneous to the whole issue. The Ld.Commissioner(Appeals) has observed that pursuant to the Trade Notice No.116/2000 dated 11.8.2000 issued by the office of the Commissioner of Central Excise, North Eastern Region, Shillong, the respondent had filed certain information and documents as required under the trade notice within a period of one year expressing their intention to claim the benefit of the said information. It is his submission that no such documents were ever filed and part of the record now it was before the Ld.Commissioner. He has submitted that the observation of the Ld.Commissioner(Appeals) based on the RT-12 returns, also not correct and reflects illegality on the face of the order. Hence, the impugned order deserves to be stayed.
4. Ld.Advocate for the respondent on the other hand has submitted that in the RT-12 return filed for the month of December, 2000 they had specifically made an endorsement stating N.B. we have installed machinery in the factory for exemption benefit. Thus as backed in the order of 2001 they have informed the department about the availment of exemption benefit under relevant Notification No.33/99-CE dated 08.07.1999. She has however, expressed her reservations about submission of documents/information relating to the Trade Notice No.116/2000 dated 11.08.2000, by the Applicant as she does not have instruction on the same. She fairly concedes that this point was not perhaps raised in their Appeal before the Ld.Commissioner(Appeals). The Ld.Advocate for the respondent has also brought to our notice that the claim under Notification No.33/99-CE dated 08.07.1999 cannot be subjected to rigors of section 11B of Central Excise Act, 1944. In support she has referred to the judgement of this Tribunal in the case of C.C.E., Dibrugarh Vs. Napuk Tea Estate and Muttrapore Tea Estate Order No.A-593/KOL/06 dated 4.7.2006. 5. After hearing both sides for some time, we find that the Appeal itself could be disposed of at this stage. Therefore instead of deciding the Stay Petition filed by the Revenue, and keeping the Appeal pending in the interest of justice, and with the consent of both sides, we take up the appeal for disposal itself.
6. We find that the appellant has filed a refund claim for Rs.54,02,509/- pertaining to the period July, 1999 to March, 2003 on 02.01.2008. The department has issued a show cause notice on 29.09.2009 alleging that even though the respondent had submitted Xerox copies of various documents, failed to supply the original documents. Also, it is alleged that the refund claim was filed after about 9 years and no reasons had been stated for such an in inordinate delay. Consequently, the respondent was put to notice why their refund claim should not be rejected on the ground mentioned in the show cause notice. We find that the adjudicating authority even though in the body of order has discussed various issues, but finally he has rejected the refund claim observing that the same is time barred being not filed within a reasonable period of time. On Appeal by the respondent, the Ld.Commissioner(Appeals) made the observation at para 13 as follows:-
13. From the findings in the impugned order it is seen that there is no reference to the RT-12 return submitted on 05/01/2001. May be the omission is deliberate with intent to deny the benefit of the notification. The impugned order only refers to the refund application dated 02/01/2008 of the appellant. The Trade Notice No.116/2000 dated 11/08/2000 was issued by the Office of the Commissioner of Central Excise, North Eastern Region, Shillong prescribing the documents which should be considered for determining the enhanced installed capacity by 25%. I find that the appellant submitted certain information & documents as required under the Trade Notice within one year from the date of Trade Notice and expressed their intention to claim the benefit of the said notification. After this, if any information was needed by the department, the department should have asked for the same and should have decided whether the appellants Unit has undergone substantial expansion or not. When nothing was heard by the appellant they formally lodged a claim in January 2008. In the circumstances it would be unfair and improper to reject the claim on the ground of delay in filing refund claim. I, therefore, hold that the department was duty bound to verify the claim of the appellant communicated vide RT-12 for the month of December 2000 that they had installed machinery in factory for exemption benefit. Having failed to verify the appellants claim in 2001, the department cannot reject the claim at a latter date on the ground of limitation.
7. It is the grievance of the Revenue that the observation of the Ld.Commissioner(Appeals) admitting the Appeal of the respondent and rejecting the observation of the adjudicating authority rests on facts which were neither brought on record nor pleaded before him. Besides Revenue is also disputing the endorsement made in the copy of RT-12 return of assessee produced before us, wherein the respondent claimed to have intimated the department about the installation of machinery and eligibility of exemption notification, an evidence referred to relied by the Ld.Commissioner(Appeals). Both sides agree that these facts requires a detailed scrutiny and verification by the authorities below and they agree that the matter be remanded to the original adjudicating authority for detailed scrutiny of the records and claims. The Ld.Advocate for the respondent has submitted that the refund claim has been pending for last 5 years, hence, a time frame may be fixed for completion of the adjudication process. Accepting the said plea, to which Ld.A.R. also agrees, we direct the adjudicating authority to complete the adjudication proceeding within a period of three months from the date of communication of this order and also we direct the respondent to co-operate with the department in filing all necessary documents including original documents, if not filed by them within a period of two weeks from the date of communication of the order. In the result, we set aside the impugned order and remand the matter to the adjudicating authority for deciding the issue afresh. Needless to mention a reasonable opportunity of hearing may be given. Appeal allowed by way remand to the adjudicating authority. Stay Petition gets disposed of.
(Pronounced and dictated in the open court.) SD/ SD/ (I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm 6 Appeal No.Ex.Ap.749/12