Whether refund claim filed within one year from the date of finalization of provisional assessment within time?

PJ/Case Laws/2012-13/1538

Case:- C.C.E. Pune Vs. M/s Metal Impregnation(I) Pvt. Ltd.

Citation:- 2013-TIOL-505-CESTAT-MUM

Brief Facts:- The Revenue has filed these appeals against the impugned order wherein the refund claim of the respondent has been sanctioned by the Commissioner(Appeals) holding that as the refund claim has been filed within one year from the date of finalization of the provisional assessment therefore the assessee is entitled for the refund claim. The Revenue has also filed applications for Condonation of Delay in filing the appeals. The appeal was filed on 5 November, 2012 and the remaining appeals were filed on 4 December, 2012. All these appeals are pertaining to the same impugned order passed by the Commissioner (Appeals). The impugned order dated 24 July, 2012 has been received by the Revenue but the date of receipt is not mentioned. On perusal of the records, it is observed that the impugned order has been received in the office of the appellant on 30 July, 2012. Therefore, the appeals against the said order were required to be filed on or before 29 October, 2012. But the appeal has been filed on 5 November, 2012 and the reason for delay in filing the appeal has been stated as under:-

“As the preparation of the appeal involved verification of some facts pertaining to the Letters of Rejection as also some facts pertaining to the legal position with regard to the period of limitation and the implications of the process of finalization of provisional assessment, the appeal memorandum could not be finalized in time.”

A COD application was preferred and filed on the same day i.e 5 November, 2012. On perusal of the application of COD, it is found that the application has been verified on 23 October, 2012. Remaining four appeals were also supposed to be filed on or before 29 October, 2012 but were filed on 4 December, 2012 with a delay of more than 34 days and the reason for causing delay is the same.

Reasoning of Judgment:- The Tribunal heard both the parties and considered that the departmental officers are not serious enough about the filing of the appeals before this Tribunal and are filing the same in a casual manner. They even did not verify the facts or reasons for causing delay, as one appeal has been filed on 5 November, 2012 and remaining appeals were filed on 4 December, 2012 against the same order-in-appeal without whispering any new reason for causing any further delay. Moreover, the verification of the COD application done has been sent on 23 October, 2012 which was within the period of limitation for filing the appeal but an application for COD has been preferred and signed on 5 November, 2012 which also show the lethargy attitude of the departmental officers taking the work in a light manner and without verifying the correct and true facts. Though the reasons for Condonation of Delay are not convincing but considering the fact that the merit of the case should not be devoided, therefore, in the interest of the natural justice, Tribunal allow the applications for Condonation of Delay and take up the appeals for consideration and disposal.

The short issue involved in the matter is whether the refund application filed within one year of finalization of the provisional assessment of Bill of Entry, is within the time or not.

The issue came up before this Tribunal in the case of CCE, Surat II vs. United Phosphorous Ltd. 2009(233)ELT 229(Tri-Ahmd) wherein this tribunal held that in the case of provisional assessment of Bill of Entry, refund claim is to be filed within one year on finalization of assessment of Bill of Entry. It is not disputed that the respondent has filed the refund claim within one year of finalization of the provisional assessment. Therefore, Tribunal hold that the refund claim filed by the respondent is within the time. Tribunal do not find any infirmity in the view of the Commissioner (Appeals). Accordingly, the appeals filed by the Revenue are rejected. The adjudicating authority is directed to comply with the direction within 30 days of receipt of this order.

Decision:- Revenue’s appeal rejected.

Comment:- The crux of this case is that the departmental officers are not serious enough about the filing of the appeals before this Tribunal and are filing the same in a casual manner. They don’t even verify the facts or reasons for causing delay. However, the case was prima facie in favour of the assessee.

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PJ/Case Laws/2012-13/1538

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