M/S. Stp Ltd vs Commissioner Of Customs (Import), ...

[Arising out of Order-in-Appeal No. 392(CRC-IIA)/2013(JNCH)/IMP-305 dtd. 30/4/2013 passed by the Commissioner of Customs (Appeals), JNCH, Sheva, Mumbai]

For approval and signature:

Honble Mr Ramesh Nair, Member (Judicial)

=======================================================

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? =======================================================

M/s. STP Ltd. : Appellants

VS

Commissioner of Customs (Import), JNCH, Nhava Sheva : Respondent

Appearance

Shri C.M. Sharma, Consultant for the Appellants Shri S.J. Sahu, Asstt. Commissioner (A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 3/8/2015 Date of decision: 3/8/2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against Order-in- Appeal No. 392(CRC-IIA)/2013(JNCH)/IMP-305 dtd. 30/4/2013 passed by the Commissioner of Customs (Appeals), JNCH, Sheva, Mumbai, wherein Ld. Commissioner (Appeals) upholding the order in original No. 1006/2012 AM(I) dated 26/4/2012 rejected the appeal filed by the appellant.

2. The fact of the case is that appellant filed refund claim amounting to Rs. 6,09,228/- toward 4% SAD in terms of Notification No. 102/2007-Cus dated 14/9/2007 vide their letter dated 29/9/2010 in respect of various Bills of Entry filed during 23/9/2009 to 31/10/2009. Refund claim was rejected by the Adjudicating authority vide his order-in-original dated 26/4/2012 on the ground of time bar. The Adjudicating authority in his order in original contended that claim of the appellant that the refund claim was filed on 30/9/2010 and acknowledgement thereof is not proper for the reason that it is general practice that all the refund filed get file number and the same is entered in submission register and the said file number is endorsed on parties acknowledgement copy. He also observed that in the submission register there is no entry in the name of the importer towards filing the claim on 30/9/2010. Since the original file is not traceable in the department and appellant is unable to establish sufficient ground that the refund claim has been submitted on 30/9/2010. He also held that as per available record it cannot be treated that the date of submission of refund could not be treated correct. He therefore concluded that in this circumstances submission of refund filed on 30/9/2010 in the department has not been proved. Aggrieved by the aforesaid order, the appellant filed appeal before the Commissioner(Appeals) who has rejected the appeal of the appellant, therefore appellant is before me.

3. Shri. C.M. Sharma, Ld Consultant submits that there is no doubt that the refund claim was submitted and acknowledged on 30/9/2010 thereafter there were correspondence with the department and recasted refund was again submitted on 15/2/2012 and every correspondence it has been informed to the department that refund was originally submitted on 30/9/2012. It is his submission that the adjudicating authority has proceeded solely on the basis of general practice at CRC Section with regard to endorsing file number on the acknowledgment. However except the general practice the adjudicating authority could not establish any evidence that refund claim submitted and acknowledged on 30/9/2010 is incorrect. He submits that there is clear rubber stamp and signature of the person, who received the refund claim in the custom department. For assessee nothing more can be obtained from the department as regard acknowledgement of submission of refund claim. It is department who failed or not recorded the receipt of the refund claim in their records. For in-action of the departmental staff, appellant could not be made sufferer. He, therefore, prays that evidence which produced by them regarding the submission of refund claim on 30/9/2010 should be accepted and accordingly refund claim should not have been rejected on time bar.

4. On the other hand, Shri S.J. Sahu, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order.

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

6. I find that the appellant has filed refund claim on 30/9/2010 and obtained acknowledgement. From the copy of acknowledgement no doubt can be raised that the said acknowledgment is fake or forged. Even in the Adjudication order as well as in the Commissioner (Appeals) order there is no charge of any wrong doing or forgery as regard the acknowledgment of the filing of refund claim with the Custom department. I do not agree with lower authorities contention that as general practice file number is mentioned on the acknowledgment. Once the appellant has been given acknowledgment unless until this held to be fake or forged, the said acknowledgment has to be accepted as proof of filing the refund claim. Therefore I am of the view that acknowledgment submitted by the appellant should be taken as proof of filing refund claim and if that is so, refund claim filed by the appellant is well within stipulated time period. The refund claim should not be rejected as time barred. I therefore remand the matter to the Original Adjudicating authority to process refund claim without going into time bar aspect as the refund has already been held having been filed within the time limit. Needless to say, Appellant shall be given personal hearing. The Adjudicating Authority shall dispose of the refund within a period of two months from the receipt of this letter. The appeal is allowed by way of remand.

(Operative part pronounced in court)

Ramesh Nair Member (Judicial)

sk

5 APPEAL NO. ST/87880/13