Case Law Details
Filing of more than one Refund claim in a month cannot be denied only because the Circular prescribes filing of one Refund claim in a month, when statutory time limit of one year was elapsing
Devki Nandan J Gupta (the Appellant) filed two SAD Refund claims of Rs. 21,92,938/- and Rs. 6,05,866/- on May 6, 2013 (Refund Claim 1) and May 24, 2013 (Refund Claim 2) respectively in terms of Notification No. 102/2007-Cus dated September 14, 2007 (the Notification). The Refund Claim 2 was
rejected by the Adjudicating Authority on the ground that the Appellant has violated the condition of Para 4.2 of Central Board of Excise & Customs (CBEC) Circular No. 06/2008-Cus dated April 28, 2008 (the Circular) which stipulates the procedure for filling SAD Refund claim. In other words, since the Appellant had filed more than one Refund claim in a month (May), thereby has violated the provision of Para 4.2 of the Circular which prescribes that, there would be a single Refund claim in respect of one importer in a month irrespective of the number of Bills of Entry, hence Refund Claim 2 was rejected.
On appeal being filed to the Ld. Commissioner (Appeals), the Ld. Commissioner (Appeals) upheld the Order of the Adjudicating Authority. Being aggrieved, the Appellant preferred an appeal before the Hon’ble CESTAT, Mumbai.
The Hon’ble CESTAT, Mumbai held as under:
- Refund Claim 1 was filed for the quantity of goods sold. However, the quantity covered under the Refund Claim 2 was unsold on May 6, 2013 and were sold during the period May 12, 2013 to May 20, 2013. Therefore, the two Bills of Entries could not have been included in Refund Claim 1;
- The contention of the Lower Authority that if the Appellant is barred from filing Refund Claim 2 in the month of May 2013 then they should have filed the same in the month of June 2013, cannot be accepted. This is because as revealed from the date of challan towards payment of duty, both the payments were made on May 26, 2012 and June 1, 2012 respectively. And if the Appellant would have filed both the Refund claims in the month of June 2013 then statutory time limit of one year would have expired and the Appellant would have become ineligible for Refund Claim 2;
- Further, the Circular also clarified that the exception is provided in case if the one year period is going to expire. Implying that it is not intention of the Circular that even though the period of one year is getting expired, the Assessee is not allowed to file more than one Refund claim in a month. Therefore, even if more than one Refund claim in a month is filed, the same cannot be denied only because of the reason that the Circular prescribed only one Refund claim in a month otherwise statutory time limit of one year provided in the Notification will become redundant;
- The Hon’ble CESTAT, Delhi in the case of S.L. Ltd. Vs. Commissioner of C. Ex., Jaipur [2008(226) E.L.T. 359 (Tri-Del)] has held that though there is procedure to file one Refund in a month or in the quarter as the case may be, but since time limit of one year is prescribed for filing Refund claim, the said procedural infraction should not come in way of the substantial claim of the Assessee.
Thus, the Hon’ble Tribunal allowed the refund in favour of the Appellant.
Author Bio
sir
We have lost order-in-original and we need to file appeal for SAD refund to commissioner appeal.
What is the procedure –
withour OIO,department not admitting the appeal papers
shivanand.tandsi@gmail.com