M/S Sponge Enterprises (P) Ltd vs C.C.E. & S.T. Raipur-I

[Arising out of Order-In-Appeal No. 16/(ST)/RPR-I/2013 dated: 07.01.2014 passed by CCE & ST Raipur]

For approval and signature:

Hon'ble 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 Sponge Enterprises (P) Ltd. ...Appellant

Vs.

C.C.E. & S.T. Raipur-I Respondent

Appearance:

Mr. Hrishikesh, Advocate for the Appellants

Mr. Devender Singh, DR for the Respondent

CORAM:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

Date of Hearing.09.06.2015

FINAL ORDER NO. 53081 /2015

Per S. K. Mohanty:

The brief facts of the case are that the appellant is engaged inter alia in the activity of trading of Iron Ore. The appellant supplies the said goods to the customers within and outside the county. The appellant avails cenvat credit of Service Tax paid on various taxable services used in or in relation to providing the output service i.e. trading of Iron Ore. In case of export of the iron ore, there is no scope for utilization of cenvat credit taken on the input services. Therefore, for the disputed period, the appellant had filed the refund application under Rule 5 of the Cenvat Credit Rules, 2004, read with the notification no. 17/09-ST dated 7.7.2009 issued by the Central Government. The said notification prescribes various conditions which an exporter shall comply for filing the refund claim. The said notification vide para 2(f) provides that the claim for refund shall be filed within one year from the date of export of the said goods. In terms of the conditions laid down in the said notification, the appellant had filed the refund application on 02.11.2012. Subsequent to filing the refund application, the appellant submitted the additional documents as desired by the Jurisdictional Central Excise Authorities i.e. certified copies of the documents and the consignment notes. The refund applciaiton was sought to be denied on the ground that the same has not been filed within one year from the relevant date. The Show Cause Proceedings initiated in this regard was dropped by the Adjudicating Authority, holding that the refund claim has been lodged within the stipulated time prescribed in the said notification. Being aggrieved with the said Adjudication order, the Revenue filed the appeal before the Commissioner (Appeals). The appeal of the Revenue was allowed in the impugned order, holding that the refund claim filed by the Respondent (appellant herein) is barred by limitation of time as prescribed under Section 11B of the Act read with Notification no. 17/09-ST dated 7.7.2009. Hence this present appeal before Tribunal.

2. The Ld. Advocate Shri Hrishikesh appearing for the appellant submits that the appellant had initially filed the refund application on 2.11.2012, which is within the stipulated time frame of one year from the date of export. According to him, the additional documents as desired by the Department were submitted subsequently on different dates. He further submits that since the refund application filed by the appellant on 2.11.2012 has not been returned to the appellant and only the additional documents were submitted on 14.12.2012, the said date cannot be construed as the date of filing of the refund application for the purpose of computation of the limitation Period. To justify his above stand, the Ld. Advocate relies on the judgment of Honble Delhi High Court delivered in the case of CCE Delhi-I vs. Arya Exports & Industries reported in 2005 (192) ELT 89 (Del) and the decision of the Tribunal in the case of Duraline India (P) Ltd. vs CCE Goa reported in 2009 (237) ELT 689 (Tri. Mumbai).

3. Per contra, the Ld. Jt. CDR Sh. Devender Singh appearing for the Revenue respondent submits that since, original documents were submitted on 14.12.2014, which is beyond the period of one year from the relevant date, the refund claim is barred by limitation of time. According to Ld. JCDR, since the refund claim has been lodged in terms of notification dated 7.7.2009, the conditions and the procedures prescribed therein have to be strictly adhere to and no relaxation can be provided for claiming the refund. To justify the above stand, the Ld. Jt. CDR relies on the judgment of Honble Supreme Court in the case of Eagle Flask Industries Limited vs Commissioner of C. Ex, Pune reported in 2004 (171) ELT 296 (SC) and also chapter 9 of the CBEC manual of supplementary notes.

4. I have heard the Ld. Counsel for both the sides and perused the records.

5. The fact is not under dispute that the refund application was originally filed by the appellant on 2.11.2012 which is within one year from the relevant date i.e. date of export of Iron Ore. The additional documents desired by the Refund Sanctioning Authority were provided by the appellant on 26.11.2012 and 14.12.2012. It is also an undisputed fact that the refund application filed on 2.11.2012 has not been returned by the Central Excise Department to the appellant as not maintainable. Since, the refund claim has been filed by the appellant on 2.11.2012 and that application has not been returned by the Department and the same has been considered for the purpose of refund of the Service Tax, the objection raised by the Revenue that the claim is barred by limitation of time is not sustainable in view of the decisions cited by the Ld. Advocate for the appellant. In the case of Arya Exports & Industries (supra), it has been held by the Honble Delhi High Court that refund claim not to be denied merely on ground that the same has not been filed in prescribed form; that if refund claim not filed in proper form or without necessary documents, Department can direct appellant to file the same in proper form along with proper documents; that date of filing claim is date of which claim was filed initially in the form not prescribed or without documents. In the present case since the refund application was filed in the proper format and the supporting documents were submitted subsequently, the principles decided in the case of Arya Exports (supra) squarely applies to the facts of the present case, and thus, refund claim is maintainable.

6. The judgment of Honble Supreme Court in the case of Eagle Flask Industries Ltd. (supra) cited by the Ld. DR is distinguishable from the facts of the present case inasmuch as the principles decided therein are with regard to strict interpretation of the exemption notification and not in context with refund claim filed in terms of the notification dated 7.7.2009, where there is a specific provision that the refund has to be filed within one year form the relevant date. Since the initial refund application was filed by the appellant on 2.11.2012 which is within the stipulated period of one year, the requirement of the said notification has been duly complied with. Chapter 9 of CBEC manual of supplementary instructions is not applicable to the facts of the present case inasmuch as the clarification furnished therein relates to refund claim under Section 11B of the Central Excise Act , 1944 and not in context with claim lodged in terms of notification dated 7.7.2009.

7. In view of above, I am of the considered opinion that the appellant is eligible for refund of Service Tax under Rule 5 of the Cenvat Credit Rules, 2004 read with the notification dated 7.72009 issued by the Central Government. Therefore, the impugned order is set aside and the appeal is allowed in favour of the appellant.

(Dictated and pronounced in open court)

(S.K. Mohanty)

Member(Judicial)

Neha

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