Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/Case Law /2016-17/3327

Whether refund is allowed if there’s a delay in filing claim and Separate Condonation Of Delay (COD) application not filed?

Case-SUZLON WIND INTERNATIONAL LTD. Versus C.C.E. (APPEALS), MANGALORE
 

Citation- 2016(43) S.T.R. 468(Tri. – Bang.)
Brief Facts-The present appeals were directed against order-in-appeal dated 31-5-2011 passed by Commissioner (Appeals) whereby the learned Commissioner (Appeals) dismissed both the appeals of the appellant by upholding the order-in-original. Since the impugned order was common therefore both the appeals were being disposed of by this order.
The appellant was a company incorporated under the provisions of the Companies Act, 1956 and has a Unit located in Synefra SEZ. The appellant had received banking services in connection with its operation of such SEZ. In terms of Notification No. 9/2009-S.T. as amended the claim of exemption by way of refund was provided for the taxable services provided in relation to authorized operations in the SEZ and received by the SEZ developer or unit whether or not the said services were provided inside the SEZ. The appellant being an SEZ unit sought such exemption by way of refund for the period March, 2009 to June, 2009 by filing a refund application dated 7-4-2010 and for the period September, 2009 by filing a refund application dated 27-4-2010 pertaining to the taxable services i.e. banking services received by them for their authorized operations in SEZ. In response to the refund application filed, the appellant was issued show-cause notice dated 10-6-2010 by the Assistant Commissioner of Central Excise Udupi Division proposing to deny refund claim as time-barred as the same had been filed beyond six months. The above said show-cause notice was adjudicated vide Order-in-Original No. 43/2010, dated 30-7-2010/4-8-2010 rejecting the refund claim as time-barred. The appellant preferred an appeal against the order dated 4-8-2010 before the Commissioner of Central Excise (Appeals), Mangalore which was disposed of vide order-in-appeal dated 31-5-2011 upholding the order-in-original by dismissing the appeal of the appellant. Hence the present appeal.
 
Appellant’s Contention-Learned counsel for the appellant submitted that the impugned order was ex facie bad in law as the same had been passed in a manner contrary to the entire spirit of Notification No. 9/2009-S.T. He further submitted that the time limit of six months stipulated in Notification No. 9/2009-S.T., dated 3-3-2009 was not absolute and can be extended by the concerned authority i.e. adjudicating authority in the present case. This being a clear legal position, it was required to be appreciated that such time limit can be extended at any time before rejecting refund and as such the reasoning given in the impugned order that since the appellant had not sought any condonation before the stipulated period, and hence the refund claim was time-barred was without any merit and cannot be sustained in law. He also submitted that Notification No. 9/2009-S.T. does not state that any extension for filing of the refund claim beyond the stipulated period of six months should be made prior to filing of the refund application when the same could not be filed within the stipulated period of six months. He further submitted that the appellant requested for condoning the delay in their refund application itself and did not move separate application as he was not aware that a separate application was required because there was a lot of confusion as the scheme of refund was new. In support of his submission he relied on the decision of Rallies India Ltd.v. CC [2006 (202) E.L.T. 845 (Tri.-Del.)]. While dealing with the issue of delay in preferring the drawback brand rate application, the Hon’ble Tribunal held that a liberal approach has to be adopted by the authorities while disposing the application for condonation of delay in respect of drawback claims. He further submitted that the learned Commissioner (Appeals) failed to appreciate the fact that delay in filing the refund claim was beyond the control of the appellant inasmuch as the services covered in the subject claim are provided by the banking companies who have not issued any bills/invoices, challans while providing the services and also while receiving the services appellants were not well versed with the provisions of this new notification as to documentary requirements. The appellants also relied upon the decision of the Bangalore Tribunal in their own case vide Final Order No. 21497/2014 in Appeal No. ST/2682/2012 wherein it was held that there is no need of filing a separate request for seeking extension of time limit of six months in order to file the refund application.
 
Respondent’s Contention-On the other hand the learned A.R. has reiterate the findings of the Commissioner and submitted that the appellant had failed to produce necessary documents which are required for seeking extension and more over it was a discretion of the adjudicating authority to grant extension or not to grant extension depending upon whether the appellant was able to satisfy the adjudicating authority by providing sufficient documentary evidence in support of his claim.
Reasoning Of Judgement-The Tribunal heard learned counsel for the parties and perused the records. The only question to be decided in this appeal was whether a separate application was required to be filed along with refund for seeking extension of time for filing the refund application or the ground for extension of stay along with the refund application was sufficient to condone the delay in filing the application. The appellant had relied upon the decision of this Tribunal cited supra wherein it had been held that no separate application for extension of time for filing refund application was required and the prayer for extension of time can be made in the refund application itself. The appellant had also produced an order passed by Commissioner (Appeals) in their own case in Appeal No. 291/2012, dated 12-7-2012 wherein the learned Commissioner (Appeals) allowed the appeal and set aside the order passed by the Assistant Commissioner rejecting the application of the appellant on limitation and moreover, the spirit of the notification is such that a liberal approach would be adopted while considering the condonation of delay in filing the refund application. The learned appellant’s counsel’s argument that since the scheme was new and there was lot of confusion regarding the same on account of lack of knowledge, a separate application along with refund claim was not filed and keeping in view the decision of the Tribunal in the case of Rallies India Ltd.v. CC cited (supra), the Tribunal was of the considered opinion that the impugned order was liable to be set aside and the Tribunal did the same and remanded both the appeals to the adjudicating authority to decide the claim of the appellant on merits and the appellant should produce before the adjudicating authority all the documentary evidence which was in his possession to claim the said refund. With these observations, the Tribunal set aside the impugned order. Further The Tribunal directed the adjudicating authority to decide the claim of the appellant within a period of three months from the receipt of the certified copy of the order.
 
Decision- Appeal remanded.
Comment- The gist of the case is that no separate application for Condonation Of Delay is required in filing refund under impugned notification and the grounds mentioned on main refund application are sufficient for condoning delay. The spirit of notification was such that it requires liberal approach .Since in appellant’s own different case, such delay was condoned, refund rejection order was set aside. The matter was remanded to adjudicating authority to decide refund on merits, within three months in accordance with Section 11B of Central Excise Act, 1944.
 
Prepared By-Praniti Lalwani
 
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com