Voxco Pigments And Chemicals Pvt Limited Vs C.C.E. & S.T. (CESTAT AHMEDABAD)
There is no dispute that the appellant had filed the refund claim on 01/06/2017 for an amount of Rs. 12,25,023/-. Thereafter, on the audit query, the appellant had decided to reduce the refund claim and, therefore, withdrew the earlier claimed and thereafter claim for Rs. 7,92,262/- which is out of the total amount of Rs. 12,25,023/- for which earlier refund filed on 01/06/2017. With this fact, I am of the view that since the appellant had filed the refund claim for amount of Rs. 12,25,023/- which was well within the stipulated time period of 01 year as prescribed under section 11B of Central Excise Act, 1944, the subsequent refund claim of Rs. 7,92,262/-must be treated as in continuation of the earlier refund as this amount is out of the total refund of Rs. 12,25,023/-. Therefore, the date of filing of refund claim should be reckoned as the claim of first filing of refund claim and not as per the date of filing the revised refund claim. This view is supported by this Tribunal judgment in the case of Commissioner of Central Excise, Surat-II vs United Phosphorous Ltd. (supra) and M/s Fives India Engineering & Projects Pvt. Ltd. vs Commissioner of CGST & CE (supra). Therefore, I am of the clear view that appellant’s refund claim cannot be rejected on the basis of time bar.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
This appeal is directed against Order in original no. CCESA-SRTAPPEAL-PS-114-2019-20 dated 31.05.2019 whereby the learned Commissioner (Appeals) has rejected the refund claim only on the ground of time bar.
2. Shri S. Suriyanarayan, learned counsel appearing on behalf of the appellant submits that initially the appellant had filed a refund claim on 01/06/2017 for an amount of Rs. 12,25,023/- which was well within stipulated time period. Subsequently on audit objection, it was withdrawn on the advice of the department. Thereafter, they submitted refund claim on 02/02/2018. He submits that since this refund claim is in continuation of refund claim submitted on 01/06/2017. Therefore, the same cannot be held time bar. He placed reliance on the following judgments:
(1) Commissioner of Central Excise, Surat-II vs United Phosphorous Ltd. – 2009 (233) E.L.T. 229 (Tri- Ahmd.)
(2) M/s Fives India Engineering & Projects Pvt. Ltd. vs Commissioner of CGST & CE – 2019 (8) TMI 747- CESTAT, Chennai
(3) Commissioner vs SPIC Ltd. – 2015 (318) ELT A178 (Mad.)
(4) M/s GIL Shared Services Private Ltd. vs Assistant Commissioner of GST & Central Excise Guindy Division – 2019 (8) TMI 825 Madras High Court
3. Shri J.A. Patel, learned Superintendent (Authorised Representative) appearing on behalf of the Revenue reiterates the findings of the impugned He further submits that since the first refund claim was withdrawn, therefore, the second refund claim should be treated fresh and that was filed after stipulated time period, i.e. one year as prescribed section 11B of Central Excise Act, 1944. Therefore, the same is time bar.
4. I have carefully considered the submission made by both the sides and perused the records. There is no dispute that the appellant had filed the refund claim on 01/06/2017 for an amount of Rs. 12,25,023/-. Thereafter, on the audit query, the appellant had decided to reduce the refund claim and, therefore, withdrew the earlier claimed and thereafter claim for Rs. 7,92,262/- which is out of the total amount of Rs. 12,25,023/- for which earlier refund filed on 01/06/2017. With this fact, I am of the view that since the appellant had filed the refund claim for amount of Rs. 12,25,023/- which was well within the stipulated time period of 01 year as prescribed under section 11B of Central Excise Act, 1944, the subsequent refund claim of Rs. 7,92,262/-must be treated as in continuation of the earlier refund as this amount is out of the total refund of Rs. 12,25,023/-. Therefore, the date of filing of refund claim should be reckoned as the claim of first filing of refund claim and not as per the date of filing the revised refund claim. This view is supported by this Tribunal judgment in the case of Commissioner of Central Excise, Surat-II vs United Phosphorous Ltd. (supra) and M/s Fives India Engineering & Projects Pvt. Ltd. vs Commissioner of CGST & CE (supra). Therefore, I am of the clear view that appellant’s refund claim cannot be rejected on the basis of time bar. The impugned order is set aside and appeal is allowed by way of remand to the Adjudicating Authority for passing a fresh order after considering the others facts and issues such as unjust enrichment, etc but without going into the limitation. The appeal is allowed by way of Remand to the Adjudicating Authority.
