Regarding Rejection of refund claim.

PJ/CASE LAW/2015-16/2997

Case-KNITEX TEXTILES PVT. LTD. VersusCOMMISSIONER OF CENTRAL EXCISE, MUMBAI

Citation-2015 (40) S.T.R. 562 (Tri. - Mumbai)

Brief Facts-The appeals arise from Order-in-Appeal No. BR/55-56/2012, dated 20-9-2012 passed by Commissioner of Central Excise (Appeals), Mumbai. Vide the impugned order, the learned lower appellate authority has rejected the refund claims of the appellant on the ground that the appellant has not fulfilled the conditions stipulated in Notification No. 41/2007-S.T., dated 6-10-2007. Aggrieved of the same, the appellant is before tribunal.

Appelants Contention-The learned CA appearing for the appellant, M/s. Knitex Textiles Pvt. Ltd., submits that the original authority rejected the refund claim on two counts, one on account of time bar and the other on account of non-submission of documents satisfying various conditions stipulated in No. 41/2007-S.T. As far as the rejection on account of time bar is concerned, the learned Consultant submits that the time limit of six months stipulated in Notification No. 41/2007-S.T. has been subsequently extended to one year vide Notification No. 17/2009-S.T., dated 7-7-2009. In view of extension of time limit to one year from the date of export the appellant’s claim is well within the time stipulated in the Notification. He also relied on the Circular No. 354/256/2009-TRU, dated 1-1-2010 wherein the issue has been clarified that the benefit of said notification would apply to exports undertaken prior to 7-7-2009 also. In view of this clarification, the findings of the lower authorities are incorrect. As regards the satisfaction of the other conditions stipulated under notification, the benefit has been availed by the appellant in respect of CHA service, the Goods Transport Service and Business Auxiliary Service. In respect of these services, various conditions have been stipulated in the above said notification. For example as far as the CHA services are concerned it is stipulated that the CHA should indicate the shipping bill number, description of goods, export invoice number and date, details of charges calculated by the CHA and so on. The learned consultant has given a few sample invoices issued by the CHA in this regard and also the invoices issued by the exporter from where it is seen that the CHA has satisfied the conditions stipulated in the said notification. However, the adjudicating and the appellate authorities have dismissed the claim of the appellant in one sentence saying that the appellant has not fulfilled the conditions of notification and hence, the refund claim is not admissible. The lower authorities have not examined the documents furnished by the appellant and if these are considered, all the information required to be furnished by the appellant are clearly evident. Accordingly, he prays for allowing the appeal or remanding the matter back to the lower authorities for reconsideration of the matter afresh.

Respondents Contention-The learned AR appearing for the Revenue has no objection in remanding the matter to the lower authorities.

Reasoning Of Judgement-Having heard both the sides and having perused the notification No.17/2009-ST and the Board’s clarification thereon, the question of time bar would not arise in the present case as the extended time limit would be available to the appellant and therefore, rejection of claim on account of time bar is not sustainable in law. As regards the various conditions stipulated, from the sample documents produced before tribunal, it is seen that all the required information is available in the documents furnished by the appellant. Inasmuch as these have not been examined in detail by the lower authorities, They remand the matter back to the original adjudicating authority to go through all the documents furnished by the appellant and consider the same and sanction the refund, if found admissible. Needless to say that the appellant should be heard before passing the de novo order. The appellant also is directed to co-operate with the department in submission of the documents of exports undertaken by them. Thus the appeals are allowed by way of remand.

Decision-Appeals allowed by way of remand

Comment-The analogy of the case is that the time limit of six months as stipulated in the Notification no. 41/2007-S.T. is subsequently extended to one year vide Notification No. 17/2009-S.T. dt.7.7.09. C.B.E. & C. Circular No. 354/256/2009-TRU, dated 1-1-2010 clarifies that the benefit of Notification no. 41/2007 is also applicable to exports undertaken prior to 7-7-2009 also. And, therefore the question of time-bar does not arise as extended time-limit available and accordingly the rejection of claim is not sustainable in law. As regards to another ground raised by the appellant regarding rejection of refund claim for non submission of documents is also not tenable because all the required information is available in the documents furnished by the assessee. Therefore, this matter is remanded back to the original adjudicating authority to go through all the documents furnished by the appellant and consider the same and sanction the refund, if found admissible.

Prepared By-Neelam Jain

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PJ/CASE LAW/2015-16/2997

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