Multiple refund claims for the same period

PJ/CASE LAW/2016-17/3193

Case-C.C.E., NASHIK Versus PELICANS AUTOMOTIVE & PROMOTIONAL PRODUCTS P. LTD.

Citation-2016 (337) E.L.T. 477 (Tri. - Mumbai)

Brief Facts-The appellant, M/s. Pelicans Automotive & Promotional Products Pvt. Ltd., filed a refund claim under Rule 5 of Cenvat Credit Rules, 2004 for the quarter October, 2009 to December, 2009 for Rs. 12,00,148/-. However, they submitted a letter dated 7-5-2010 to the Deputy Commissioner stating that a certain amount of Rs. 4,08,900/- is inadmissible to them. The balance amount of Rs. 7,91,248/- was sanctioned to the appellant. Thereafter, the appellant filed another claim of Rs. 5,45,240/- for the same period October, 2009 to December, 2009 seeking refund of the amount which they had earlier claimed was inadmissible and certain other amounts. The said refund claim was rejected by the Assistant Commissioner on the ground that they do not fulfil the conditions as provided under Rule 5 of the Cenvat Credit Rules, 2004 and also for the reason that they have not challenged the earlier order-in-original No. 149/R/2010, dated 20-5-2010 wherein the refund for the same period was sanctioned. The claim was also rejected on the ground that they have not filed relevant documents. The appellant challenged the said order before the Commissioner (Appeals) who held that the appellants are entitled to refund as there is no bar on filing multiple refund for the same period. The Commissioner (Appeals) observed that the earlier order dated 20-5-2010 sanctioned the refund to them and did not specifically reject the balance refund. It was held that such an order would not disentitled them from filing a fresh claim. Aggrieved by this order, the Revenue is in appeal before Tribunal on the ground that the Notification under Rule 5 prescribes that refund cannot be filed more than once in any quarter. It is argued that even for EOU there is a facility for filing a monthly return for each month of the quarter but the same is not a permission to file multiple refund for the same quarter. It was also argued that the order-in-original dated 20-5-2010 restricted the amount of refund after considering the assessee’s own letter dated 7-5-2010. Since the said order had become final, it is not open to the respondents to raise the same issue once again. It was also argued that the Commissioner (Appeals) has no power to remand the matter.

Appelants Contention-The learned AR reiterated the grounds of appeal.

Respondents Contention-The learned counsel for the respondents argued that there was no rejection of refund in the order-in-original dated 20-5-2010. He argued that the said order only sanctioned the refund. He also argued that they have filed a fresh refund application for the same quarter.

Reasoning Of Judgement-The tribunal have considered the rival submissions. They find that appellant had filed a refund claim of Rs. 12,00,148/- and the claim was sanctioned for an amount of Rs. 7,91,248/-. The claim pertains to October, 2009 to December, 2009 and the new claim also pertains to exactly the same period. They find that the Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 in clause (2) prohibits filing of more than one refund claim in any quarter in a calendar year. Moreover, the earlier order-in-original dated 20-5-2010 has attained finality as the same has not been challenged by the respondents. It is not open to respondents to raise the issue afresh by filing a new refund claim.In view of the above, the appeal of Revenue is allowed. The impugned order is set aside.

Decision-Appeal allowed

Comment-The gist of the case is that the NotificationNo. 5/2006-C.E. (N.T.) read with Rule 5 of Cenvat Credit Rules, 2004 prohibits filing of more than one refund claim in any quarter in a calendar year. Moreover, earlier order on refund claim for same period which had attained finality has not been challenged by assessee. And, therefore the assessee cannot raise issue afresh by filing a new refund claim.

Prepared By-Neelam Jain

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PJ/CASE LAW/2016-17/3193

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