TMI Blog2015 (2) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... claim within stipulated time of six months. - it is crystal clear that in the present case, the date of deposit i.e. 10/12/2008 shall be excluded and six months shall be reckoned from 11/12/2008 and therefore the appellant's refund claim was filed on last day of completing the six months period i.e. 10/6/2009, accordingly the refund claim is not time bar - Decided in favour of assessee. - Appeal No.C/379/12-MUM - - - Dated:- 13-11-2014 - Ramesh Nair, J. For the Appellant : Shri R K Shetty, Adv. For the Respondent : Shri Senthil Nathan, Dy Commissioner (AR) JUDGEMENT Per: Ramesh Nair: The appeal is directed against Order-in-Appeal No. 20(GR.CRC-I) 2012 JNCH-IMP-15 dtd. 25/1/2012 passed by the Commissioner of Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation, in terms of Section 9 of General Clauses Act, 1897, the first day has to be excluded for starting any period. Accordingly, for computing the period of six months in the present case the day of filling refund i.e. 10/12/2008 must be excluded, therefore period of six months shall be reckoned from 11/12/2008. If it is so, then six months shall be completed on 10/6/2009 on which date the appellant has filed the refund claim. Therefore the refund was filed within the stipulated time period of six months, thus there is no delay in filling refund claim. He submits that since there is no delay, the Dy. Commissioner and Commissioner (Appeals) ought not to have rejected the refund claim of the appellant on the ground of time ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. 3) Where a decree or order is appealed from or sought to be revised or reviewed, or when an application is made for leave to appeal from a decree or order the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded. (4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. Explanation: In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the arguments of both the sides. We find that the order of the Collector (Appeals) holding that the original refund claim was not hit by time bar is correct in law. In computing the time-limit the date of the event with reference to which time-limit is to be calculated is to be excluded. The Collector (Appeals) has relied upon the Tribunal decision which has been referred to above. In the said decision Section 12 of the Limitation Act has been relied upon. The said section lays down that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. Incidentally on this point he pointed out that this provision would apply only to suit or appeal or applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days from the commission of the offence, a notice served at 8 a.m. on January 25, was held to be valid even though the offence was committed at 7.15 a.m. on January 11. 4. It has also been observed by the learned author that the General Rule of exclusion of the first day and the inclusion of the last day is subject to a contrary intention indicated in the statute. Applying the above principle we find that in Section 11B of the Central Excises and Salt Act relating to refund claims the relevant expression is that a person claiming refund may make an application for refund ...... before expiry of six months from the relevant date. In view of the clear position regarding the effect of the word 'from', the proper procedure would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that when the goods were shipped for export on 3-10-97, six months will expire on 2-4-98, therefore, the rebate claim filed on 3-4-98 is one day late after expirty of six months. 5. The issue in respect of calculation of the time period is already settled by the Tribunal in the case of Collector of Central Excise v. S.A.I.L., Rourkela Steel Plant , reported in [1992 (61) E.L.T. 732 (Tribunal)]. The Tribunal held that in view of the clear decision regarding the effect of word From which has also been used in Section 11B of Central Excises Salt Act, 1944 the proper procedure would be to exclude the relevant date therein and start the period of limitation of six months from the following day. The fact that the relevant date is de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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