M/S Kagzi Brothers Pvt. Ltd vs Commissioner Of Central Excise, Honey ...

IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV

APPEAL NO. E/467/10

(Arising out of Order-in-Appeal No. SB/158/Th-I/09 dated 29.12.2009 passed by the Commissioner of Central Excise (Appeals) Mumbai Zone-I.)

For approval and signature: Honble Shri Anil Choudhary, Member (Judicial)

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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? =====================================================

M/s Kagzi Brothers Pvt. Ltd.

: Appellant Versus

Commissioner of Central Excise, Honey one : Respondent

Appearance Shri A.V. Naik, Advocate : For Appellant Shri H.M. Dixit, Asst. Commr. (A.R.) : For Respondent

CORAM: HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)

Date of Hearing : 27.04.2015 Date of Decision: 27.04.2015

ORDER NO.......................................................

Per: Anil Choudhary:

The appellant M/s Kagzi Brothers Pvt. Ltd. is in appeal against Order-in-Appeal No. SB/158/Th-I/09 dated 29.12.2009 passed by the Commissioner of Central Excise (Appeals) Mumbai Zone-I.

2. The brief facts are that the appellant is a processor of textile fabrics falling under Chapter 52 and 55 of the First Schedule to the Central Excise Tariff Act, 1985. The appellant purchases grey fabrics on which duty was paid. The appellant processed/manufactured and thereafter exported the same. As the appellant was unable to utilize the input credit, and it cleared the goods for export under Bond, applied for refund for an amount of Rs. 29,45,627/ in Form R on 17/05/2007 claiming refund of unutilized Additional Excise Duty (Textiles and Textiles Articles) Credit lying in their RG-23A Part-I account pertaining to the period from June, 2003 to August, 2004 in pursuance of the CBEC Circular No. 267/11/2003 CX8 dated 22/03/2007. The said claim was rejected vide Order-in-Original dated 10/3/2008 mainly on the ground that the claim filed was barred by limitation as provided under the provisions of Section 11B of the Central Excise Act. Being aggrieved the appellant preferred appeal before the Commissioner (Appeals) who was also pleased to reject the claim of the same on the ground of limitation.

3. Being aggrieved the appellant is in appeal before this Tribunal. From the impugned order it is evident, the Range Superintendent (para-4) by his letter dated 9/7/07 had requested the appellants to submit original documents such as input invoices, RG23A partI and part-II Register, RG-I Register, E.B.IV Register, grey Lot Register, Bale Packing Register, Export documents, proof of export, etc. for verification. In response the appellants by their letter dated 9/10/2007 submitted the invoices along with Annexure-D for verification and vide letter dated 12.10.2007 they submitted original copies of invoices with Annexure-D in triplicate. It is further observed that the Superintendent by his letter dated 18.10.2007 requested the appellants to submit statement of quantity of processed for and used for manufacture of export quantity along with lot register, bale register etc. The appellants also submitted a summary of export clearance for the period in dispute and also submitted on 17.12.2007 statements of the relevant records, documents, copies of the ARE-1 and commercial invoices. The Range Superintendent again asked for information to be given in the format enclosed with his letter dated 15.02.2008, served on 18.02.2008. The appellants sough 2 weeks time, as the data was voluminous and about 5 years old. However without giving any opportunity, claim was rejected as unsubstantiated and also as barred by limitation. The appellant further states that there have been miscarriage of justice by rejecting the claim on the ground of limitation and refusing to consider the claim on merits on flimsy ground. The appellant had filed most of the documents. The appellant preferred appeal before the Commissioner (Appeals), which was rejected, upholding the rejection on limitation under Section 11B as well as on merits. Accordingly the appellant prays that the impugned order be set aside for a fresh decision on merits to the adjudicating authority.

4. The learned A.R. appearing for the Revenue relies on the impugned order and further states that the appellant have been negligent in supporting the claim on merits.

5. Having considered the rival contentions, I find that so far the issue of limitation is concerned the same stands settled by the Hon'ble Karnataka High Court in the case of m Portal India Wires Solutions (P) Ltd. Vs. Commissioner of Service Tax  2011 (9) TMI 450 (Kar.), wherein the Hon,ble High Court have held that the claim under Rule 5 of the CENVAT Credit Rules, 2004 does not become time barred, because there is no time limit prescribed for utilization of the CENVAT credit availed. That it is only after lapse of sufficient time that an assessee unable to utilize the CENVAT credit lying, due to the nature of the business, accordingly file claim of refund. In this view of the matter, I decide the issue of limitation in favour of the appellant and hold that no limitation is involved in the matter of refund under Rule 5 of CENVAT Credit Rules, 2004.

5.1 I find that the appellant have filed many documents in support of the claim, which needed to be considered. The claim of appellant was not considered as the Courts below have rejected the claim mainly on the ground of limitation. That it is just and proper to remand the matter back to the adjudicating authority to consider the claim on merits, after hearing the appellant. The opportunity of hearing will also include opportunity to support the claim with any other documents and/or statement, as may be fit and proper for deciding the claim.

6. Thus, the question of limitation is allowed in favour of the appellant and the claim is remanded back to the adjudicating authority for a decision on the merits. Thus, the appeal is allowed in part.

(Pronounced in open Court)

(Anil Choudhary)

Member (Judicial)

Sp

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