M/S.Northern Coalfields Ltd vs Cce, Bhopal

[Arising out of Order-in-Appeal No.BPL-EXCUS-000-APP-250/13-14 dated 21.02.2014 passed by the Commissioner (Appeals), Central Excise, Customs and Service Tax, Bhopal]

For approval and signature:

HONBLE MR. S.K. MOHANTY, 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.Northern Coalfields Ltd. Appellant

Vs.

CCE, Bhopal  Respondent

Present for the Appellant : Shri Rajeev Kumar Agarwal, CA

Present for the Respondent: Shri B.B. Sharma, DR

Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)

Date of Hearing/Decision: 21.05.2015

FINAL ORDER NO. 54209/2015

PER: S.K. MOHANTY

Denial of refund claim on the ground of limitation is the subject matter of present dispute.

2. Brief facts of the case that the appellant is a producer coal and supplies the same to various power plants belonging to the Public Sector Undertakings. The price of coal is determined based on the quality of coal supplied by the appellant. During the disputed period, the appellant had billed the customers for the higher quality/grade of coal. However, on joint verification, since it was detected that the appellant had supplied lower grade coal, the customers had settled the price attributable to such grade of coal. Upon finalisation of price with the customers, the appellant had filed the refund application, claiming refund of differential Central Excise duty claimed in the invoices vis-a-vis settled price negotiated with the customers. The refund application was returned by the Department, stating that since the assessment is provisional, the refund application is premature. The said application was re-submitted by the appellant, stating that due to inadvertence, they had indicated the word provisional in the ER-I Return, which is not the correct position, for the reason that the assessment was final. However, considering the date of re-submission of the refund application as the relevant date, the Central Excise department rejected the refund application on the ground of limitation. In the impugned order, the Commissioner (Appeals) upheld the adjudication order. Hence, the present appeal is before this Tribunal.

2. Heard both sides and perused the records.

3. It is an admitted fact that the refund application initially filed by the appellant on 28.03,2012 was within the limitation period of one year from the relevant date prescribed under Section 11B of the Central Excise Act, 1944. However, the said application was again re-submitted under the cover of letter dated 29.08.2012 in clarifying certain queries raised by the Department. The date of re-submission of refund application should not be considered as the date of initial filing of the same for the purpose of computation of the limitation period. In this context, I find support from the decisions cited by the ld. Consultant for the appellant in the case of TVS Suzuki Ltd. vs. CCE, Trichy reported in 2004 (165) ELT 192 (Tri.-Chennai), Rajasthan Electronics & Instruments Ltd. vs. Commr. of Central Excise, Jaipur reported in 2006 (200) ELT 324 (Tri.-Delhi) and Balmer Lawrie & Co. Ltd. vs. CCE, Kolkata-VI reported in 2015 (315) ELT 100 (Tri. Kolkata).

4. In view of the statutory provisions and the decisions referred (supra), I am of the considered opinion that the impugned order is liable to be set aside. Therefore, the same is set aside and the appeal is allowed in favour of the appellant.

(Dictated and pronounced in the open Court)

(S.K. MOHANTY)

MEMBER (JUDICIAL)

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