M/S. Kultar Exports vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 206/ST/DLH/2012 dated 6.9.2012 passed by Commissioner of Central Excise (Appeals), New Delhi]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

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?

M/s. Kultar Exports Appellants

Vs.

Commissioner of Central Excise, Respondent

New Delhi

Appearance:

Shri Jitender Singh, Advocate for the Appellants

Shri B B Sharma, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 09.10.2015

ORDER NO. FO/53156/2015-Ex (SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order rejecting their refund claim as time barred by the lower authorities.

2. The facts of the case are that the appellant effected export of various goods during the period July, 2008 to March, 2009 whereas service tax was paid for Business auxiliary i.e. commission paid to the foreign agent in March, April, May 2010. The return was filed and service tax paid on 15.6.2010. Later on 10.12.2010, they filed refund claim under notification No. 41/2007-ST dated 6.10.2007. The said refund claim was rejected by the lower authorities on the premise that same is time barred.

3. Learned Counsel for the appellant submits that they have filed refund claim within one year from the date of payment of service tax. Therefore, as per section 11B of the Central Excise Act, they are entitled to the refund within one year from the date of payment of service tax.

4. On the other hand, learned AR drew my attention to the notification 41/2007 ibid clause e wherein it has been clearly stated that refund under this notification is to be filed within 60 days from the end of relevant quarter from the date said goods had been exported. He took the support of decision of Sakay Overseas vs. CCE, Ludhiana reported in [2013-TIOL-1022-CESTAT-Del].

5. Heard the parties. Perused the Notification no. 41/07 ibid clause 2( e) which is reproduced herein asunder:

2( e) the claim for refund shall be filed on a quarterly basis, within sixty days from the end of the relevant quarter during which the said goods have been exported:

Provided that the said goods shall be deemed to have been exported on the date on which the proper officer of Customs makes an order permitting clearance and loading of the said goods for exportation under section 51 of the Customs Act, 1962 (52 of 1962);

On perusal of the said provision of notification, I find that appellant was required to file refund claim within 60 days from the date of end of relevant quarter. Admittedly, the refund claim is filed beyond that period of limitation and same view has been taken by this Tribunal in the case of Sakay Overseas (supra). As refund claim has been filed beyond prescribed time limit under notification No. 41/2007, therefore, I hold that refund claim is barred by limitation. Therefore, I do not find any infirmity in the same. Same is upheld. Appeal filed by the appellant sis dismissed.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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