Prime Electric Ltd vs Commissioner Of Customs, Central ...

[Arising out of Order-in-Appeal No. 1/2011(G) ST dated 06/01/2011 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Guntur.]

For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

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?

PRIME ELECTRIC LTD MULTI PRODUCT SEZ, NAIDUPET NELLORE DT AP Appellant(s)

Versus

Commissioner of Customs, Central Excise and Service Tax GUNTUR P.B.NO. 331, C.R.BUILDING, KANNAVARI THOTA, GUNTUR  520 004. ANDHRA PRADESH Respondent(s)

Appearance:

Mr. B. Srinivasa Rao, DGM of Co. C.H. VENKATESWARA RAO 5-21-104,2/18, Brodiept, GUNTUR - 522002 AP For the Appellant

Dr. A. K. Nigam, Addl. Commissioner (AR) For the Respondent

Date of Hearing: 09/04/2015

Date of Decision: 09/04/2015

CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20932 / 2015

Per : B.S.V.MURTHY

This appeal is against the rejection of refund claim which is filed by the appellant which is a SEZ unit. Admittedly the refund claim was filed beyond the time limit of six months prescribed in Notification No.9/2009  Service Tax dated 3.3.2009. The representative of the assessee submitted that the following claims made by the appellants have not been considered or properly dealt with.

1. The Commissioner (Appeals), in para 8 of his order was kind enough to give a finding that there will be delay in obtaining particulars from Banks and getting the approval from approval Committee. Therefore in fairness he should have allowed the appeal taking a liberal view, which he has not done.

2. The finding of the Commissioner (Appeals) that issue of the show-cause notice is not mandatory is not correct.

3. Commissioner (Appeals) did not consider the plea of the appellants that the special benefits given to the appellants under SEZ scheme, cannot be denied on technical reasons and procedural omissions.

4. The order passed by the Commissioner (Appeals) is in violation of the principles of natural justice.

It can be seen from the above that the Commissioner (A) having observed that there may be delay in getting the approval of the Committee or certificate from the bank, did not even examine whether that was a case in this refund claim. This could have been examined and considered and explained why the delay cannot be condoned. In my opinion, the facts and circumstances leading to the delay could have been examined and whether the appellants deserve condonation of delay could have been considered in greater detail.

2. Learned AR would submit that the Notification does not speak of grant of suo moto condonation of delay. It is required to be applied for and then only it can be considered. I find some validity in his submission.

3. In view of the above, the matter is remanded to the original adjudicating authority before whom the appellant shall file detail submissions explaining the delay and seek condonation of delay and also place other points, if any, for consideration of their refund claims. All the issues are kept open for consideration by the original authority. In the result, the impugned order is set aside and the matter is remanded to the original authority for fresh consideration in accordance with law.

(Order pronounced in open court)

B.S.V.MURTHY TECHNICAL MEMBER

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