Case Law Details

Case Name : Nitudevi Sharad Kothari Vs Commissioner of Central Excise, Nagpur (CESTAT Mumbai)
Appeal Number : Order No. S/56/2013/SMB/C-IV & A/80/2013/SMB/C-IV
Date of Judgement/Order : 16/11/2012
Related Assessment Year :
Courts : All CESTAT (609) CESTAT Mumbai (127)


Nitudevi Sharad Kothari


Commissioner of Central Excise, Nagpur

ORDER NOS. S/56/2013/SMB/C-IV & A/80/2013/SMB/C-IV
APPEAL NO. ST/749 OF 2010

NOVEMBER  16, 2012


1. When the appeal was called, none appeared on behalf of the appellants.

2. The appeal had come up previously on two occasions on 15/06/2012 & 19/10/2012. On both these occasions also, the appellant was not present. This is the third time the appeal is coming up for hearing. Therefore, I take up the appeal and stay application for consideration.

3. In this case, the stay application is infructuous, inasmuch as the grant of stay would amount to allowing the appeal, which is not permissible in law. As the issue lies in a narrow compass, I take up the appeal itself for consideration and disposal.

4. The Ld. AR appearing for the Revenue points out that the refund claim has been rejected on account of time bar. In the present case the appellant purchased a flat and paid service tax of Rs. 40,381/- to the builder on 24/10/2008 and thereafter, he filed a refund claim for the service tax paid on 28/01/2010 i.e. after a lapse of more than one year. Inasmuch as the refund claim has been filed after a lapse of one year, the claim is time barred and accordingly, the rejection is sustainable in law.

5. I have carefully considered the submissions. As rightly pointed out by the Ld. AR, the refund claim ought to be filed within a period of one year from the payment of service tax by the person claiming the refund as per the provisions of section 11B of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994. From the records it is seen that the appellant had paid the service tax on 24/10/2008, and the refund claim was filed on 28/01/2010 i.e. after a lapse of one year from the date of payment of tax. Therefore, the rejection of refund claim on account of time bar is sustainable in law. Accordingly, I dismiss the appeal as devoid of merits.

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