M/S. Dic Fine Chemicals Pvt. Limited vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-PJ-367TO371-VDR-II-2012 dated 21.12.2012, passed by Commissioner (Appeals) Central Excise, & S.T., Vadodara)

M/s. Dic Fine Chemicals Pvt. Limited : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Vadodara : Respondent (s)

Represented by :

For Appellant (s) : Shri Paritosh Gupta, Advocate For Respondent (s) : Shri S.K. Shukla, Authorised Representative

For approval and signature :

Mr. H.K. Thakur, Honble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

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

Yes

CORAM :

Mr. H.K. Thakur, Honble Member (Technical)

Date of Hearing / Decision : 01.05.2015

ORDER No. A/10500 / 2015 Dated 01.05.2015

Per : Mr. H.K. Thakur;

This appeal has been filed by the appellant with respect of OIA No. PJ-367TO371-VDR-II-2012 dated 21.12.2012 under which the first appellate authority has upheld the Order-in-Original passed by the adjudicating authority on time barred issue.

2. Shri Paritosh Gupta (Advocate) appearing on behalf of the appellant argued that the refund claim was originally filed on 30.11.2011 but the same was returned to the appellant on the same date by the adjudicating authority for submitting certain original documents. The appellant Company submitted the documents on 25.01.2012. However, it was held by the adjudicating authority that after submission of the documents on 25.01.2012, the refund claim was time-barred. It is the case of the appellant that the period of limitation should be counted from 30.11.2011 when the appellant original submitted the refund claim. He relied upon the following case laws on the issue:-

(a) CCE, Delhi vs. Arya Exports and Industries  [2005 (192) ELT 89 (Del.)]

(b) Angiplast Pvt. Limited vs. CCE, Ahmedabad  2010 (19) STR 838 (Tri. Ahmd.)

3. Shri S.K. Shukla (AR) appearing on behalf of the Revenue argued that as per Para 2 and 4 of CBEC supplementary instructions the claim should be filed alongwith all the original documents and in case the original documents are not submitted and refund claim is returned to the appellant, the same should be considered to have been filed only when all relevant documents are filed. It was also his case that the refund claim was only decided on time bar issue and as per the finding given by the adjudicating authority he has not gone into detail scrutiny of the claim papers and rejected the claim as time-barred. It was argued that if on limitation the appeal is considered than the issue of unjust enrichment will also be required to be examined by the adjudicating authority and that the matter may be remanded back for examining unjust-enrichment.

4. Heard both sides and perused the case records. Regarding the relevant date for deciding the refund claim on limitation, the issue is no more res-integra as the Hon'ble Delhi High Court in the case of Arya Exports and Industries (supra) has decided the issue and held that date of filing claim should be considered as relevant date even if the same is not filed in prescribed form and the documents are not submitted alongwith the refund application. Following the Honble Delhi High Court order, this Bench in the case of Angiplast Pvt. Limited vs. CCE, Ahmd  [2010 (19) STR 838 (Tri. Ahmd.) had decided the issue in favour of the assessee. The order passed by this Bench in the case of Angiplast Pvt. Limited is reproduced below:-

[Order]. - The appellants claim for refund of accumulated grant of input services in terms of Notification No. 41/2007-S.T., dated 6-10-07 stands denied to the appellant on the ground of limitation. While holding so Commissioner (Appeals) observed as under :

10.?From the facts of the case I find that the appellant had originally filed refund claim on 26-8-08 received by the divisional office on 29-8-08. After scrutiny of the claim papers, number of shortcomings were found viz non-availability of original bills/invoices raised by the service provider, the bills/invoices including other service charges in addition to the transportation charges, number of bills/vouchers were not showing full description of goods exported and quantity thereof, the requisite evidence like payment of bills and mode of payments thereof were not submitted by the appellant. The appellant also has not segregated the specified services and bills/ vouchers/invoice and had not arranged the claim in manner to work out the charges for specified services for which they have claimed refund. Therefore, the divisional office vide letter dated 13-10-08 returned back the claim to the appellant which was received by the appellant on 4-11-08.

11.?From the above I find that even after returning the refund claim by the Department i.e. on 13-10-08 (though claimed to be received on 4-11-08, the appellant has sufficient time to resubmit the same by end of December. However, they missed the opportunity and filed the claim on 6-2-09 (received by Divisional Office on 9-2-09). This also shows that the refund claim filed earlier had number of deficiencies and the appellant themselves had taken almost more than three months which indirectly proves that the earlier they had filed incomplete claim.

2.?Learned advocate appearing for the appellant relies upon the Delhi High Courts judgment in the case of CCE Delhi v. Arya Exports and Industries reported in 2005 (192) E.L.T. 89 (Del.) laying down that the date of filing claim is the date when the claim is filed initially and the subsequent date of filing in the proper form and with the asked for documents cannot be considered as the actual date of filing of refund claim. I agree that the law on the issue is no more res integra and stands settled by various decisions. The initial refund claim having been filed well within time, the same is required to be considered within limitation. Accordingly I set aside the impugned order and remand the matter to Commissioner (Appeals) for decision on merits.

5. In view of the above settled proposition of law, the appeal filed by the appellant on time-barred issue is allowed. Further, so far as applicability of unjust-enrichment is concerned, the matter is remanded back to the adjudicating authority for deciding the same in the remand proceedings. Needless to say that the adjudicating authority shall afford an opportunity of personal hearing to the appellant before deciding their refund claim.

6. Accordingly, the appeal is allowed by way of remand. The adjudicating authority should decide the matter within a period of one month from the date of receipt of this order.

(Order dictated and pronounced in the Court)

(H.K. Thakur) Member (Technical) .KL

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