M/S. Midex Global Pvt. Ltd vs And Central Excise-Indore

[Arising out of order-in-appeal no. IND-I/02/2009 F. No. 206-CE/Ind/Appl/2009/06 dt. 16.01.2009 passed by the Commissioner (Appeal) Central Excise-Indore]

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

2. Whether it would 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 Department Authorities?

M/s. Midex Global Pvt. Ltd. Appellant

Vs.

The Commissioner Customs

And Central Excise-Indore Respondent

Appearance: None for the appellant.

Ms. Suchitra Sharma, Commr. (AR) for the respondent.

Coram: Honble Mr. Justice G. Raghuram, President

Honble Shri R.K. Singh, Member (Technical)

Final Order No. 52905/2015

Per: R.K. Singh

Appeal is filed against order-in-appeal dated 16/1/2009 which upheld order-in-original dated 24/9/2008 in terms of which the refund claim of Rs. 4,39,796/- was rejected as time barred.

2. The facts of the case briefly stated are as under:

The appellant filed refund claim in terms of notification no. 41/2007-ST as amended by the notification no. 03/2007-ST and 17/2008-ST. The Primary Adjudicating Authority rejected the refund claim on the ground that it was time barred. The appellant in its appeal has contended that it filed the refund claim within the time limit prescribed under section 11B of the Central Excise Act, 1944 made applicable to the service tax vide section 83 of the Finance Act, 1994 and the statutory provisions would prevail over the provisions of a notification and cited the judgment of Gujarat High Court in the case of Indo-Nippon Chemicals Co. Ltd. Vs. Union of India reported in 2005 (185) ELT 19 (Guj.). It also cited the judgment of CESTAT in the case of Gilooram Gauri Shankar Vs. Commissioner of Central Excise-Ranchi.

3. When the case was called for hearing, there was no representation on behalf of the appellant nor any request for adjournment was received. We, therefore, proceed to decide the issue on merit.

4. We have considered the appellants contention. It is an admitted fact that the appellant did not file its refund claim within the time period prescribed in the notification no. 41/2007-ST as amended.

In terms of the clause 2 (e) of the said notification, as amended, claim for refund shall be filed on a quarterly basis within 60 days from the end of the relevant quarter during which the said goods had been exported. The appellant has contended that it filed the refund claim within the time limit prescribed under section 11B of the Central Excise Act and the statutory time limit would prevail over the provision of a notification. In this regard, it is pertinent to mention that it is not the case of normal refund. It is a case of availment of exemption under notification 47/2007-ST. It is just that the exemption from service tax under notification no. 41/2007 is operationalized by way of refund of Service Tax paid. It is settled law that exemption under a notification is available subject to the fulfillment of all the conditions prescribed therein. Non-fulfillment of any of the conditions of exemption notification disentitles an assessee from the benefit of the notification. In the present case, the availability of exemption under notification no. 41/2007-ST as amended was inter-alia subject to the condition that the refund claim is filed on a quarterly basis within 60 days from the end of the quarter. As stated earlier, this condition has been violated by the appellant and so the appellant does not remain entitled to the benefit of the said notification under which the refund was claimed. The judgments cited by the appellant pertain to the refund of unutilized CENVAT credit and, therefore, have no relevance to the present case.

5. In the light of the forgoing, we do not find any infirmity in the impugned order. The appeal is dismissed.

(Justice G Raghuram)

President

(R.K. Singh)

Member (Technical)

Ritu

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