TMI Blog2015 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, it can be said that all on a sudden 513 shipping bills shall not entitle the appellant to refund which is barred by limitation. Therefore, on that count, appellant fails to succeed - appellant has no claim to get the refund against all these shipping bills. However, we appreciate difficulty of appellant as to filing of original documents for the reason advanced by appellant and no leviability of Cess. But we do not consider it proper to hold contrary to the bar of limitation prescribed by law relating to refund. - Decided in favour of assessee. - Appeal Nos. C/163/2006 & C/233/2006 - Final Order No.41269-41270/2015 - Dated:- 21-9-2015 - Shri D.N. Panda, Judicial Member and Shri R. Periasami, Technical Member For the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) failed to appreciate that when the law is laid down by Hon'ble High Court of Madras in the above judgement, there is no necessity of denying the refund claim arose out of 513 shipping bills of the appellant occasioning export of shrimp which is not leviable to Cess. (4) When no copies of shipping bills were made available by customs to appellant, it was prevented to produce the original shipping bill to learned Commissioner (Appeals). Prevention to produce the same was for reason beyond its control. That shall not handicap the appellant to refund. The first shipping bill copy available was submitted to DGFT for claim of DEPB. Second copy was submitted to the bank for realization of foreign exchange and the third copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue went to Hon'ble High Court of Madras in the C.M.A.No.212/2007 and others. The Hon'ble High Court in the Judgment reported in 2008 (230) ELT 225 (Mad.) upheld the decision of the Tribunal holding that fish does not include shrimp. Therefore, no CESS can be levied on the shrimps exported. But still Revenue being aggrieved has challenged the above reported judgement of the High Court of Madras before apex court. That is pending. 4. It was further submitted on behalf of the appellant that when the question of law was under test by Hon'ble High Court, the question of time bar does not apply and all the 513 shipping bills which has common cause of levy, does not disentitle appellant to refund arising out of those shipping bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutive authority. At least it should have come forward immediately to submit its claim. But that was not done. Further, when there was no original documents before both the authorities below it was not practically possible on the part of the department to consider the claim of the appellant. 8. Heard both sides and perused the records. There is a mode of claim of refund prescribed by law. We do appreciate the difficulties of the appellant as to prevention to produce original document in support of claim of refund. But we fail to understand why appellant did not keep its refund claim alive before the adjudicating authority as and when shipment was made when as early as in 1999 it was aware that there arose liability towards Cess under th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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