M/S. Reliance Communications ... vs Commissioner Of Customs, Mumbai

[Arising out of Order-in- Appeal No. 33/Mumbai-III/2013 dtd. 10/1/2013 passed by the Commissioner of Central of Customs (Appeals), Mumbai- Zone III]

For approval and signature:

Honble Mr Ramesh Nair, 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 : 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?

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M/s. Reliance Communications Infrastructure Ltd. : Appellants

VS

Commissioner of Customs, Mumbai : Respondent

Appearance

Shri. Prithwiraj Chouhan, Advocate for the Appellants Shri. S.J. Sahu, Asst. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 6/2/2015 Date of decision: 6/2/2015

ORDER NO.

Per : Ramesh Nair

The appeal is directed against Order-in- Appeal No. 33/Mumbai-III/2013 dtd. 10/1/2013 passed by the Commissioner of Customs (Appeals), Mumbai- Zone III, wherein the appeal of the appellant is rejected as time bar and order in original was modified. The fact of the case is that the appellant has filed refund claim under Notification No. 102/07 Cus dated 14/9/2007 in respect of 4% SAD paid under Bill of Entry No. 346919 dated 15/11/2007 and No. 346320 dated 14/11/2007 and payment of duty was made vide TR6 Challan No. 98850410 dated 19/11/2008. The original adjudicating authority rejected the refund claim on the ground that the appellant has failed to produce CST/VAT/ST challans towards payment of VAT/Sale tax. The appellant also failed to produce various Annexure, certifying proof of payment of 4% SAD and original bill of entry and TR-6 Challan. Aggrieved by the said order the appellant filed appeal before the commissioner (Appeals), who vide impugned modifying the order in original, rejected the appeal as time bar. The Commissioner(Appeals) in his order given finding that the refund claim was not filed within the stipulated time period and therefore refund is time bar.

2. Shri. Prithwiraj Chouhan, Ld. Counsel for the appellant submits that the original authority has rejected the claim for non-submission of certain documents, however he submit that as of now all the deficiency raised by the sanctioning authority, the appellant have submitted all the documents. He further submits that the Commissioner (appeals) has rejected the appeal only on the ground of time bar whereas the issue of time bar was neither before original authority nor in their appeal before the Commissioner(Appeals). It is his submission that custom duty was paid on 19/11/2007 and the refund application was filed on 12/11/2008. In this regard he drawn my attention to the copy of the refund applicant wherein acknowledgment date is 12/11/2008. Ld Counsel also refer letter dated 4/8/2010 issued by the Asst. Commissioner of Customs-Refund, ACC Mumbai wherein date of submission was mentioned as 12/11/2008 therefore refund was filed well within the period of one year from the date of payment of duty. He also submits that in the order-in-original under brief fact the date of submission of claim was mentioned as 19/11/2008 whereas the same appears to be typographic/clerical mistake on the part of the department. It is clear from the acknowledgment and the letter of the Revenue that the actual date of submission of claim is 12/11/2008 and accordingly the refund is not time bar.

3. Shri. S.J. Sahu, Ld. Asst. Commissioner(A.R.) appearing for the Revenue reiterates the findings of the impugned order.

4. I have carefully considered the submissions made by both the sides.

5. From the submission of the Ld. Counsel and documents perused by me, it is absolutely very clear that refund application was filed on 12/11/2008 against date of payment i.e. 19/11/2007 which is not under dispute. Therefore it can be conveniently concluded that the refund was well within the stipulated time limit and can not be rejected on time bar ground. As regard deficiency in the submission of documents, Ld Counsel stated that as of now all the documents have been submitted. In view of these facts, I remand the matter to the original authority by setting aside the order of the Commissioner(Appeals). The original adjudicating authority is directed to dispose of the matter within two months from the date of receipt of this order. Needless to say that appellant shall be given sufficient opportunity of hearing before denovo adjudication. The appeal is allowed by way of remand.

(Dictated in court)

Ramesh Nair Member (Judicial)

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