Harini G.Rao vs Commissioner Of Central Excise And ...

[Arising out of Order-in-Appeal No. 147-09 dated 17/04/2009 passed by CCE(Appeals), Mangalore]

For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

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 authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

HARINI G.RAO CHARTED ACCOUNTANT, VISHWAS TOWER, COURT BACK ROAD, UDUPI Appellant(s)

Versus

Commissioner of Central Excise and Service Tax MANGALORE NULL 7TH FLOOR...TRADE CENTRE, BUNTS HOSTEL RD., MANGALORE, - 575003 KARNATAKA Respondent(s)

Appearance:

Advocate For the Appellant

Shri Pakshi Rajan, Asst. Commissioner(AR) For the Respondent

Date of Hearing: 27/03/2015

Date of Decision: 27/03/2015

CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20897 / 2015

Per : B.S.V. MURTHY

The appellant had filed a refund claim for Rs.2,65,968/- claiming refund of service tax paid by her on the amount received from MESCOM as per the OIO No.72/2005-06(AC) dt. 28/02/2006. The refund claim was made on the ground that the Tribunal had decided that there is no liability to pay service tax on the service rendered similar to the one rendered by the appellant to MESCOM in appeal No.ST/209/2006 dt. 01/10/2007. However, the refund claim came to be rejected after issue of a show-cause notice and proceedings, on two grounds viz. the refund claim was filed beyond the period of one year and the order confirming demand for service tax issued by the Assistant Commissioner on 28/02/2006 had attained finality since the appellant had not filed any appeal against the decision.

2. The appellant also has filed miscellaneous application seeking to place additional evidence. Initially the miscellaneous application could not be found since no number has been allotted and it was not listed. However the miscellaneous application is being considered in view of the fact that the learned counsel produced a copy of the document where the stamp of CESTAT has been made.

3. In the miscellaneous application, the appellants seek to show that the refund claim had actually been filed on 27/11/2007. The refund claim was sent under certificate of posting and other than the acknowledgement by the postal authorities, there is no other evidence to show that the claim has been received by the concerned refund sanctioning authority. Nevertheless the fact remains that if the appeal cannot be considered because the OIO passed by the authority on 28/02/2006 has attained finality and therefore refund claim, in any case, is not admissible is accepted, the date of filing becomes irrelevant.

4. At this juncture, the learned counsel also submitted that it is the appellants claim that the original authority should have rectified the order. He relies on the provisions of Section 74 of Finance Act, 1994 and according to Section 74(1), with a view to rectify any mistake apparent from the record, the Central Excise officer who passed any order under the provisions of this chapter may, within two years from the date on which such order was passed, amend the order. Therefore the original authority could have amended the order on any day prior to 28/02/2008. In this case, no rectification application was filed by the appellant but the original authority identified the mistake on his own and therefore the amendment could not be carried out to the order prior to 28/02/2008. It is the submission of the learned counsel that in May 2008 when the show-cause notice issued for rejecting the refund claim was being replied to, the appellant had sought rectification of mistake. However unfortunately, even if a liberal view is taken that in the reply to the show-cause notice also rectification could have been sought, the time limit for filing rectification application was over long back. In such a situation, the original authority could not have considered the rectification application, or the claim for rectification made in the reply to the show-cause notice (assuming, could have been considered) as per the provisions of statute. Therefore the rectification application also cannot be held to have been rejected wrongly. Honble Supreme Court in the case of Singh Enterprises has held that when statute prescribes a time limit, such time limit has to be followed unless the statute provides powers to condone the delay. In this case Section 74 of Finance Act, 1994 does not provide for any condonation of delay in consideration of application for rectification or for suo moto consideration. That being the position, the request for rectification cannot be considered at all.

5. The next question that arises is whether refund claim can be said to have been filed beyond the time limit. In this case, no claim was made before the lower authorities that a refund claim had been filed on 27/11/2007. Such a claim has come up for the first time before the Tribunal and that too with an evidence in the form of acknowledgment of the receipt of the refund claim for delivery to the concerned authorities by the postal authorities. In case of letters sent under certificate of posting, unlike registered post acknowledgment due, the postal authorities do not take any responsibility to ensure that the letter is delivered and acknowledged by the recipient and also do not maintain any evidence to show that the delivery has been made. Under the circumstances, the only possibility is verification of records by the original authority in the office of the original authority to check any claim stands received. If such a claim had been received, question is what happened and why it has not been considered.

6. However, in my opinion, at this stage this issue need not be considered by the Tribunal since, in my opinion, the ground that OIO confirming the demand for service tax had attained finality in the absence of a challenge to it in accordance with law cannot be ignored and has to be upheld. Once that is done, the date of filing the refund claim becomes irrelevant. If a view is taken that the order has not attained finality, the question as to whether the refund claim filed by the appellant sent under certificate of posting was received or not and if it was received whether regular refund claim considered by the original authority as time barred has to be treated as having been filed it on 27/11/2007 would arise. This can be done by the original authority if and when the appellants are able to succeed by challenging this order or by any further statutory means or legal remedies available to the appellant. Therefore, in my opinion, I need not go into the question at this stage. In the result, the appeal is rejected.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER

Raja..

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