TMI Blog2022 (11) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... d of one year is computed from the date of initial filing of the claim, the claims are made well within time. The date of initial submission of the refund claim is 10.07.2015, 10.07.2015, 01.09.2015 - In regard to the claim for July 2014-September 2014 it is seen that when computed from the last month of the quarter, the claim is filed well within time. The claim has been held to be time-barred computing the period of one year from the first month of the quarter. When the notification prescribes to file the refund claim for a quarter, the entire quarter has to be considered as a whole, without splitting each month. The appellant is eligible to get refund of unutilized credit of every month. The procedure to file refund claim for a quarter is only to make the filing and processing easier. It is noted in the impugned order as well as the order passed by the original authority that the appellant has not furnished E.R.2 returns and other necessary documents for processing the refund claims - matter requires to be remanded to the original authority for processing the refund claims after giving an opportunity to the appellant to furnish the required documents - Appeal allowed by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 689 (Tri. Mumbai) - Duraline India Pvt. Ltd. (iii) 2006 (206) E.L.T. 536 (Tri. Bang.) Rubberwood India (P) Ltd. (iv) 2005 (184) E.L.T. 240 (Guj.) - United Phosphorus Ltd. (v) Chennai Petroleum Corpn. Ltd Vs CGST C EX 2019 (369) E.L.T. 1636 (Tri.-Chennai) 3. Ld. Counsel submitted that the original authority failed to consider the above decisions and held that these decisions are not applicable as these decisions pertain to the period before 2012. Ld. Counsel submitted that there is no change in Rule 5 of Cenvat Credit Rules, 2004 before or after 2012. Notification issued under Rule 5 of CCR has been changed. Prior to 2012, Notification No.5/2006 was applicable whereas after 2012 Notification No.27/2012 is to be followed. A plain reading of both the notifications would establish that there is no substantial change in the basic principles for claim refund of unutilized credit. Hence the finding of the lower authority that the above decisions are not applicable and that refund claims are time-barred is erroneous. It is submitted by the Ld. Counsel that in regard to the fourth claim for the period July 2014 to September 2014, the appellant was not issued even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.10.2013 30.09.2014 23.12.2014 10.07.2015 6,11,540 Jan-March 2014 01.01.2014 31.12.2014 27.03.2015 10.07.2015 3,66,312 April-June 2014 04.04.2014 31.03.2015 30.06.2015 01.09.2015 6,70,721 July-Sept. 2014 24.07.2014 30.06.2015 25.09.2015 - 5,11,398 8. The refund claims have been rejected by the authorities below holding that when the period of one year is computed from the date of resubmission of the claim it is time-barred. The department has taken a view that when claims have been resubmitted, the period of one year has to be computed from the date of resubmission. The discussion made by the original authority in this regard is as under : 08. As regards the second issue as to whether the subject claim filed by the exporters for the quart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lects lack of responsibility and lack of accountability. That this is so is confirmed in the concurrence with this summary disposal by the first appellate authority. 12. We are constrained to make such an observation because the law on this aspect is well-settled. That the appellant is an exporter whose prices, in accordance with well-entrenched policy, are not to be loaded with the tax element should have been sufficient cause to demonstrate judiciousness in disposing off the claims. 13 . The Hon ble High Court of Delhi has, in Commissioner of Central Excise, Delhi-I v. Arya Exports and Industries [2005 (192) E.L.T. 89 (Del.)], held : 4 .. The assessee had filed an application under Rule 57F94) for refund of the excise duty wrongly recovered from him. This application was declined on the ground that that it was not made in the prescribed form and necessary documents were not annexed thereto. Thereafter another application was filed by the assessee which again was dismissed being beyond the period of limitation and citing the relevant portion of the impugned order of this Tribunal The refund claim cannot be denied to them merely on the ground that the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oregoing, answer to the question for decision in the present appeal is that if on a proper classification refund of larger amount than admissible under the heading or item originally claimed becomes payable to the appellant, such larger amounts should be refunded to the appellants and should not be limited to the amount admissible under the item or heading originally claimed. 32. It has been expressed that these are taxation matters and the interpretation with regard to another enactment should not be imported herein. That is hardly a ground to ignore the law laid down by the Supreme Court, when the Supreme Court judgments do not make any such exception in respect of taxation matters. 16 . We, therefore, find that the appellant had filed the application for refund within the deadlines stipulated in the relevant notification. The goods in the production of which the taxable services were used had been exported. We also notice that protracted correspondence was with the object of ensuring that all deficiencies in the application were made good. After this prolonged exercise, it would appear that the original authority found no ground for rejection of the claims other than an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is remanded to the refund sanctioning authority who shall decide these claims on merits. The impugned orders are set aside. 11. The Principal Bench of the Tribunal in the case of CCE Indore Vs National Steel Agro Industries Ltd. - 2016 (42) STR 345 (Tri.-Delhi) held that if the claim is initially filed within time, the resubmission of claim has to be considered in continuation of the earlier claim and cannot be held to be time-barred. The relevant paras of the Tribunal s decision (supra) are reproduced as under : 3 . We have considered Revenue s contentions. We find that the issue of sanction of refund claim of service tax paid on LDD TSC charges has been discussed by Commissioner (Appeals) citing C.B.E. C. Circular No. 104/07/2008-S.T. wherein it has been clarified that such storage/temporary warehousing facility is a part and parcel of Goods Transport Agency service. Further as has been observed by Commissioner (Appeals) the respondent had first filed refund claim within 60 days from the end of relevant quarter before Assistant Commissioner, Central Excise Division, Indore who after considerable period advised that the claim should be filed before Assistant Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a quarter, such right of refund cannot be snatched away by computing one year from the first month of the said quarter. Further, the appellant was not even issued a deficiency memo. 14. Ld. A.R has submitted that even at the time of resubmission, the appellant has not furnished necessary documents. It is noted in the impugned order as well as the order passed by the original authority that the appellant has not furnished E.R.2 returns and other necessary documents for processing the refund claims. Taking note of this aspect, I am of the view that matter requires to be remanded to the original authority for processing the refund claims after giving an opportunity to the appellant to furnish the required documents. 15. From the discussions above, the impugned order rejecting the refund claims as time-barred is set aside. The matter is remanded to the original authority who shall process the refund claims after giving an opportunity to the appellant for personal hearing as well as to furnish the requisite documents. The appeals are partly allowed and partly remanded to the original authority in the above terms. (Pronounced in court on 16.11.2022) - - TaxTMI - TMITax - S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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