Time limit for filing refund claim.

PJ/Case Law /2016-17/3292

Case-JOHN KELLS BPO SOLUTIONS (I) P. LTD. Versus COMMR. OF C. EX. & S.T., GURGAON

Citation-2016 (43) S.T.R. 473 (Tri. - Chan.)

Brief Facts-The Appellant has filed this appeal against the impugned orders wherein the refund claim file Under Rule 5 of the Cenvat Credit Rules, 2004, was rejected as time barred. The facts of the case are that the appellant is engaged in the activity export of service during the period of January, 2008 to March, 2008 and October, 2008 to December, 2008. Certain Cenvat credit availed on input service was remained unutilised and accumulated in their Cenvat credit account. The appellant filed refund claim of accumulated Cenvat credit unutilised in their Cenvat credit account Under Rule 5 of the Cenvat Credit Rules, 2004 on 30-3-2009 and 30-11-2009 respectively. The said refund claims were rejected by the adjudicating authority as time barred. On appeal before the ld. Commissioner (Appeals), the order of rejection was set aside and it was held that refund claim is required to file within one year of the relevant date i.e. when the goods are exported. In remand, some refund claims were sanctioned but the remaining refund claims were rejected on the ground that same is time barred by the limitation as per Section 11B of the Central Excise Act, 1944. Aggrieved from the said order, the appellant is before me.

Appelants Contention-The ld. Counsel for the appellant submits that as per Rule 5 of the Cenvat Credit Rules, 2004, the appellant is required to file one refund claim in a quarter and time period will apply as per Section 11B of the Act. Admittedly, for the quarter January, 2008 to March, 2008 they were required to file one refund claim and the same has been filed on 13-3-2009 which is within one year from the date of the end of the quarter, therefore, the refund claim filed by the appellant was within time. To support this contention, he relied on the following case laws.
A.         STI India Ltd. - 2010 (19)S.T.R.614 (M.P.) = 2009 (236)E.L.T.248 (M.P.)
B.         JCT Ltd. - 2013 (296)E.L.T.426 (Tri.-Del.)
C.         Elcomponics Sales Pvt. Ltd. - 2012 (279)E.L.T.280 (Tri.-Del.)
D.         Deepak Spinners Ltd. - 2014 (302)E.L.T.132 (Tri.-Del.)

Respondents Contention-On the other hand, the ld. AR opposes the contention of the counsel and submits that in the initially of ld. Commissioner (A) has fixed relevant date i.e. date of export in this case. Admittedly, the refund claims in question have been filed beyond one year from the said date of export and the said order of ld. Commissioner (Appeals) has not been challenged by the appellant. In that circumstance, the case relied upon by the appellant are not applicable to the facts of this case.

Reasoning Of Judgement-Heard the parties and considered the submissions. On careful consideration of the submissions both the sides, they find that under Rule 5 of the Cenvat Credit Rules, 2004, the refund claim is required to filed once in a quarter i.e. during the pendency to the quarterly if export has been completed, in that case also refund claims required to filed within one year of the last date of the quarter. In this case, only one refund claim is required to be filed for the quarter, in that case, the relevant date is the last date of the quarter. In this case, for the quarter January, 2008 to march, 2008 the refund claim has been filed on 30-3-2009, which is within one year of the last date of quarter. Further, for the refund claim pertains to October, 2008 to December, 2008, the refund claim has been filed on 30-11-2009 which is also within one year of the date of end of quarter. In that circumstances the refund claims filed by the appellant are within time as held by this Tribunal in case laws referred in Para 3 hereinabove, therefore refund claims cannot be rejected as time barred.
With these observation, the impugned orders are set aside and the appeals are allowed with consequently relief, if any.

Decision-Appeals allowed

Comment-According to Rule 5 of Cenvat Credit Rules, 2004 the refund claim pertaining to January, 2008 to March, 2008 quarter filed on 30-3-2009 and that of October, 2008 to December, 2008 quarter on 30-11-2009, both within one year from end of respective quarter. Thus these refund claims are not hit by limitation as only one refund per quarter is to be filed.

Prepared By-Neelam Jain

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PJ/Case Law /2016-17/3292

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