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2015 (9) TMI 534 - CESTAT NEW DELHI

2015 (9) TMI 534 - CESTAT NEW DELHI - 2015 (40) S.T.R. 734 (Tri. - Del.) - Denial of refund claim - Bar of limitation - Held that:- in the present case the date of filing the refund claim electronically, which is 5.7.2012, is to be taken as the date of filing the refund claim and with reference to that date the impugned amount rejected is not barred by time. - for the creatures of the Statute (including the Deputy Commissioner and the CESTAT Tribunal) the time limit prescribed under Section 11B .....

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81/2014-ST(SM) - Final Order No. A/50902/2015-SM(BR) - Dated:- 27-3-2015 - R K Singh, Member (T),J. For the Appellant : Shri A K Batra, CA For the Respondent : Ms Suchitra Sharma, DR ORDER Per: R K Singh: The appellants filed appeal against Order-in-Appeal No. 24/SM/ST/D-II/14/ST/DLH dated 17.04.2014 which upheld the Order-in-Original No. 170/2013-R dated 22.08.2013 in terms of which out of the amount of ₹ 42,70,470/- claimed by the appellants, the primary adjudicating authority sanctioned .....

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. The appellants have put forth the following contentions in support of their claim. I. They referred to trade notice No. 14/ST/2009-ST dated 17/9/2009 issued by Commissioner of Service Tax (Del) wherein it was stated that using the ACES the user will be able to take registration on line electronically, file statutory the returns, claims, intimation and permission/refunds and request for provisional assessment view and track the status of their documents online. II. Even in the Frequently Asked .....

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in ACES." III. In the light of the foregoing clarifications the refund claim filed by them electronically should be treated as the claim filed under Section 11B. IV. Alternatively they argued that what was deposited by them cannot be treated as Service Tax as the same was not payable and so the provision of Section 11B of the Central Excise Act, 1944 are not applicable and therefore refund claim cannot be treated to be time barred and cited several judgments to that effect. V. The Central .....

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. The application contains all the details including the amount of refund claimed and the details of challans under which the service tax was deposited and even the grounds for refund were mentioned in the application. I find that in a similar situation in the case of M/s NCS Pearson India Private Ltd. Vs. C.C & C.E & S.T, Noida, Tribunal by its Final Order No. 58499-58500/2013 dated 01.12.2013 held as under:- "The issue involved in these appeals is whether the claims filed by the a .....

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to submit the hard copy of the refund claim in office of the Central Excise Division Noida. In response to that the claims were submitted by the appellant in the Divisional Office on 25.8.201. The fact of submission of the claim on 13.12.2010, has been admitted by the Range Superintendent in his letter dated 13.05.2011. Since the appellants have submitted the claim electronically in pursuance of Board Circular as well as the trade notices, it will be in interest of justice not to treat the clai .....

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purpose of deciding whether the claim was filed within time and the subsequent date of filing in proper form and with documents is not to be considered as actual date of filing. In the light of the analysis above, it is held that in the present case the date of filing the refund claim electronically, which is 5.7.2012, is to be taken as the date of filing the refund claim and with reference to that date the impugned amount rejected is not barred by time. 3. Thus while the impugned rejection is n .....

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eatures of the Statute (including the Deputy Commissioner and the CESTAT Tribunal) the time limit prescribed under Section 11B ibid is sacrosanct. The Hon'ble Supreme Court in the case of Mafatlal Industries Vs. Union of India 1997 (89) ELT 247 (S.C.) held that all claims for refund except when the levy is held to be unconstitutional are to be preferred and adjudicated upon under Section 11B of the Central Excise Act or under Section 27 of the Customs Act 1962. In the case of Miles India Ltd .....

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