Refund claim - date of submission of claim -reg.

PJ/Case Laws/2011-12/1573

Case: COMMISSIONER OF C. EX., NOIDA V/s KOHINOOR ENTERPRISES

Citation: 2012 (25) S.T.R. 302 (Tri.-Del.)

Issue:- Refund claim – whether allowable to assessee when claim actually made within time limit of one year on 31.12.2004 but was resubmitted on 28.02.2005 but by typographical error date entered as 13.9.05?

Brief Facts: -The respondents are engaged in the manufacture of Home furnishings falling under Chapter 94 of the Central Excise Tariff Act, 1985. They filed refund claim of Rs. 277015/- with the adjudicating authority in accordance with the provision of Rule 5 of the Cenvat Credit Rules, 2004 for refund of unutilized cenvat credit availed by him on inputs/input services during the period from 1.6.04 to 16.6.04 used in the manufacture of finished goods which were exported under the relevant Bills of Lading dated 10.7.04 to 19.7.04. The adjudicating authority vide his order dated 19.6.08 sanctioned the cash refund of Rs. 277015/- to the respondents. Aggrieved by the said refund claim, Revenue filed appeal before the Commissioner (Appeals) on the ground that the refund was hit by limitation of one year inasmuch as , the cenvat credit was availed during the period 1.6.04 to 16.6.04 whereas the claim was filed by the respondents on 13.9.05.

Appellant’s Contention: - The appellant asserted that the said refund claim was filed with the Superintendent and was received by the Deputy Commissioner on 30-9-05. It is their contention that the date of receipt of the refund in the office of Deputy Commissioner should be taken into consideration. That they accepts that the original refund claim was filed in the Division office on 30-1-04 but their contention is that the same only bears initial of some person without any mention of name or designation of the said person nor it has stamp of Division office. As such they cannot be held that the refund claim bears the acknowledgement of the Division.

Respondent’s Contention: - The respondentcontended that 13-9-05 was a typographical error whereas the refund claim was actually filed with the jurisdiction Deputy Commissioner on 31-12-2004. Vide his office letter dated 13-1-05, the Deputy Commissioner directed them to resubmit the claim along with the relevant documents. Such claim was submitted by them on 28-2-05 in the Range office after removing the objection raised by the Deputy Commissioner. As such, they contended that original claim filed on 31-12-2004 was within limitation period even the resubmitted claim was filed on 28-2-2005 whereas even according to the Revenue, the last date of filing claim was 30-6-05.

Reasoning of Judgment: -The Hon’ble Tribunal held that he has perused the copy of relevant refund application dated 31.12.04 for Rs. 277015/- as produced by the respondents and find that the same was duly acknowledged by the office of the Deputy Commissioner, Central Excise, Division III Noida on the same date i.e. 31-12-2004. Besides they have perused the copy of the letter C. No. V(18)Ref/Inst/N.III/632/04/296, dated 13-1-2005 of the Deputy Commissioner, Central Excise Division-III, Ghaziabad vide which the respondents were required to resubmit their above refund application along with the certain documents viz final proof of shipment of goods/certificate by the customs authorities on the back of ARE-I. The claim along with requisite documents as aforesaid was resubmitted to the Deputy Commissioner by the respondents vide their letter dated 28-2-2005. The perusal of the Deputy Commissioner's above letter dated 13-1-05 and the respondent's letter dated 28-2-05 (acknowledged by the department on 9-3-05) reveal that date of receipt of the said refund claim is 31-12-04. Further with regard to the said refund claim of Rs. 2,77,015/-, the table given in the said letter dated 13-1-05 of the Deputy Commissioner, Central Excise Division III Noida clearly mentions date of receiving to this office 31-12-04. These facts lead to the conclusion that the actual date of filing the refund claim is 31-12-04 and accordingly, the same has been filed by the respondents well within the stipulated period of one year under Section 11B of Central Excise Act, 1944. Thus it may be mentioned that the date of filing of the refund claim as indicated in para 1 and para 2 of the order in original No. 124 /Ref /N.III/08-09 dated 19-6-08 (vide which the instant refund claim was sanctioned) i.e. 13-9-05 is nothing but a typographical error, as contended by the appellants. Further in the discussion and findings part of the order in original, the adjudicating authority has specifically recorded that the claim has been filed within time limit of one year as prescribed under Section 11B of the Central Excise Act, 1944 and the claim has been found admissible in other respects.

Further they held that that there is no dispute that the original refund claim was filed by the assessee on 31-12-2004 and subsequently resubmitted on 28-2-05. Further they said that the letter dated 13-1-05 written by Deputy Commissioner requiring the respondents to resubmit refund application along with relevant documents is not being doubted by the revenue in the Memo of appeal. The said letter refers to refund claimed on 13-1-04. If that be so, the genuineness of the refund claim filed on 13-1-04 cannot be doubted and the fact that the same bears the official stamp or signatures or only official receiving the same is irrelevant.

Decision: - Appeal rejected.

Comments

PJ/Case Laws/2011-12/1573

Post a Comment

Query