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2015 (10) TMI 33 - CESTAT CHENNAI

2015 (10) TMI 33 - CESTAT CHENNAI - TMI - Denial of refund claim - Bar of limitation - Held that:- 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 u .....

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ments 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 Petitioner : Shri R. Asokan, Advocate (Sl.No.1) Ms. Sridevi, Advocate (Sl.No.2) For the Respondent: Ms. Indi .....

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ot; by any stretch of imagination. There was no definition of "fish" in the Schedule appearing under Agricultural Produce CESS Act, 1940. This view of the Tribunal was upheld by the Hon'ble High Court of Madras in C.M.A.No.212/2007 and others disposed by a judgement dt. 4.7.2008 as reported in 2008 (230) ELT 225 (Mad.) By this judgement, there shall not be liability of the appellant at all whereas the department has in sequence held against the appellant and fastened with liability .....

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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 f .....

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ant. According to him, when the refund claim arises in respect of shipping bill claim should have been made against each such bill duly. But when law was settled holding no levy of Cess, State cannot be enriched at the cost of the appellant without refund of the cess realised. 2. Ld. counsel explained the history of the case stating that in the year 1999 when it suffered against a shipping bill of that year instead of approaching to the executive machinery it went in writ petition to the Hon' .....

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to levy under Section 3 of the aforesaid Cess Act, shrimp is immune from that levy of CESS under that law. But being aggrieved by that order of the Tribunal, Revenue 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 .....

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gued that refund was not claimed by appellant against each shipping bill for the reason that the matter was being agitated before High Court during pendency of writ petition No.20123/98. The refund claim pertaining to 513 shipping bills arose during the year 2000-01 to 2004-05. The decision of the High Court in the above writ petition came on 20.9.2003. By that time, appellant was under bonafide belief that its entire claim for the shipment of the prawn/shrimps made during the period 2000-01 to .....

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gainst judgement of Hon'ble High Court of Madras as reported aforesaid. According to Revenue, time bar is prescribed for submitting the refund claim. Failure to comply to law relating to limitation debars the refund claim for consideration. Secondly, it is submitted on behalf of the Department, that appellant was well aware that its writ petition was disposed and it was directed to approach executive authority. At least it should have come forward immediately to submit its claim. But that wa .....

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