Knitex Textiles Pvt. Ltd vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. II

APPEAL No.ST/860 & 861/12

(Arising out of Order-in-Appeal No.BR/55-56/2012 dated 20/09/2012 passed by Commissioner of Central Excise (Appeals), Mumbai)

For approval and signature:

Honble Mr. P.R. Chandrasekharan, Member (Technical)

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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 : Yes 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?

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Knitex Textiles Pvt. Ltd., Appellant Vs. Commissioner of Central Excise, Mumbai Respondent

Appearance: Shri.Keval Shah, CA for appellant Shri.S.V. Nair, Asst. Comm. (AR) for respondent

CORAM: Honble Mr. P.R. Chandrasekharan, Member (Technical)

Date of Hearing : 20/03/2015 Date of Decision : 20/03/2015

ORDER NO

1. The appeals arise from Order-in-Appeal No.BR/55-56/2012 dated 20/09/2012 passed by Commissioner of Central Excise (Appeals), Mumbai. Vide the impugned order, the learned lower appellate authority has rejected the refund claims of the appellant on the ground that the appellant has not fulfilled the conditions stipulated in Notification No.41/2007-ST dated 06/10/2007. Aggrieved of the same, the appellant is before me.

2. The learned CA appearing for the appellant, M/s.Knitex Textiles Pvt. Ltd., submits that the original authority rejected the refund claim on two counts, one on account of time bar and the other on account of non-submission of documents satisfying various conditions stipulated in No.41/2007-ST. As far as the rejection on account of time bar is concerned, the learned Consultant submits that the time limit of six months stipulated in Notification No.41/2007-ST has been subsequently extended to one year vide Notification No.17/2009-ST dated 07/07/2009. In view of extension of time limit of one year from the date of export the appellants claim is well within the time stipulated in the Notification. He also relied on the Circular No.354/256/2009-TRU dated 01/01/2010 wherein the issue has been clarified that the benefit of said notification would apply to exports undertaken prior to 07/07/2009 also. In view of this clarification, the findings of the lower authorities are incorrect. As regards the satisfaction of the other conditions stipulated under notification, the benefit has been availed by the appellant in respect of CHA service, the Goods Transport Service and Business Auxiliary Service. In respect of these services, various conditions have been stipulated in the above said notification. For eg., as far as the CHA services are concerned it is stipulated that the CHA should indicate the shipping bill number, description of goods, export invoice number and date, details of charges calculated by the CHA and so on. The learned consultant has given a few sample invoices issued by the CHA in this regard and also the invoices issued by the exporter from where it is seen that the CHA has satisfied the conditions stipulated in the said notification. However, the adjudicating and the appellate authorities have dismissed the claim of the appellant in one sentence saying that the appellant has not fulfilled the conditions of notification and hence, the refund claim is not admissible. The lower authorities have not examined the documents furnished by the appellant and if these are considered, all the information required to be furnished by the appellant are clearly evident. Accordingly, he prays for allowing the appeal or remanding the matter back to the lower authorities for reconsideration of the matter afresh.

3. The learned AR appearing for the Revenue has no objection in remanding the matter to the lower authorities.

4. Having heard both the sides and having perused the notification No.17/2009-ST and the Boards clarification thereon, the question of time bar would not arise in the present case as the extended time limit would be available to the appellant and therefore, rejection of claim on account of time bar is not sustainable in law. As regards the various conditions stipulated, from the sample documents produced before me, it is seen that all the required information is available in the documents furnished by the appellant. Inasmuch as these have not been examined in detail by the lower authorities, I remand the matter back to the original adjudicating authority to go through all the documents furnished by the appellant and consider the same and sanction the refund, if found admissible. Needless to say that the appellant should be heard before passing the denovo order. The appellant also is directed to co-operate with the department in submission of the documents of exports undertaken by them. Thus the appeals are allowed by way of remand.

(Dictated in Court)

(P.R. Chandrasekharan) Member (Technical)

pj

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