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Tamil Nadu News Print & Papers Ltd. Versus Commissioner of Central Excise, Trichy

2016 (5) TMI 1209 - CESTAT CHENNAI

What is the correct date for filing of the refund claim - Whether the date should be taken as 11.1.2013 as contended by the appellant herein or 28.11.2013 which is the date of resubmission of the application by the appellant or whether 12.11.2014 as decided by the adjudicating authority - Held that:- the appellant had filed refund claim dt.11.1.2013 on 23.1.2013. A claim for refund which is wanting certain documents and particulars cannot be a reason to hold that the claim was not filed within t .....

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of Sashun Pharmaceuticals Ltd. Vs Jt. Secretary, M.F. (D.R), New Delhi [2013 (8) TMI 200 - MADRAS HIGH COURT] has held that original filing of the claim is to be reckoned for the purpose of limitation. Therefore, the finding that claim of refund is time barred is contrary to the judgement of the Hon’ble Madras High Court and is therefore set aside. The matter is being remanded to the original authority to examine the aspect of unjust enrichment. - Appeal allowed by way of remand - Appeal No. C/ .....

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rintendent (Tech.), Customs Division, Nagapattinam letter C.No.VIII/20/02/2013-Tech dt. 28.1.2013 and requested the appellant to file the refund claim again and returned the original C.A. certificate to the appellant. The appellant submitted a reply dt. 28.11.2013 and re-submitted the claim on 09.10.2014. Finally, the adjudicating authority vide OIO No.3/2015 dt. 26.1.2015 dismissed the refund claim as time-barred under Section 27 of the Customs Act, 1962. On appeal, the learned Commissioner (Ap .....

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e of unjust enrichment. The counsel further submitted that the practice of suomoto refund which was in vogue earlier was stopped and as per the current provisions, they have to file refund claim under section 27, before proper officer enclosing all the documents in the format prescribed the refund regulation 1995. As per the order, appellant filed a refund application on 11/01/2013 along with CA certificate to prove that the refund does not attract unjust enrichment. The original triplicate copy .....

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l documents; that the coal imported is used as a fuel for generation of steam, which is in turn used for generation of electricity as well as in the production process. It is not a raw material that will form part of the end product manufactured by them. Some portion of the coal imported is given to sugar mills who in turn supply to us bagasse for use in the manufacture of paper. Appellant have taken CENVAT credit only for the goods used in our factory in the statutory register maintained as per .....

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certificate to rule out the unjust enrichment; that in the certificate, it is clearly mentioned that the portion of duty claimed as refund is maintained and shown in our accounts as receivables from Customs. When the duty claimed as refund is shown as receivable separately in their accounts, the question of including this in costing does not arise; that the department wrongly returned the refund application filed by them on 28-1-2013, asking them to produce certificate from the cost accountant. .....

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rted accountant certificate ruling out UJE and extract of credit of CV Duty taken by them as CENVAT credit. Hence the rejection of the claim by the LAA as time barred is not sustainable. He relied on the Tribunal's decision in the case of TVS Suzuki Ltd. Vs CCE - 2004 (165) ELT 192 (Tri.-Chennai). 3. Shri Kailash Chandra Jena, ADC, Ld.A.R appearing on behalf of Revenue submits that claim filed by appellant was incomplete and they were asked to resubmit the refund claim on 10.12.2013. The cla .....

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. Ltd. - 2000 (116) ELT 401 (SC) are not applicable to the facts of this case and the requirement of Cost Accountant certificate is no where mentioned in the statute. The said Apex Court's judgement does not stipulate that Cost Accountant's certificate should be produced for ruling out unjust enrichment or how the unjust enrichment should be verified. When, they have filed CA certificate to rule out unjust enrichment showing separately in their books of accounts as 'receivables' .....

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mission of the application by the appellant or whether 12.11.2014 as decided by the adjudicating authority. The Commissioner (Appeals) has stated that the appellant had filed the refund claim dt.11.1.2013 on 23.1.2013 and certain documents like Bill of Entry, cash receipt and challan had not been enclosed along with the said application by the appellant and the Cost Accountant Certificate and worksheets were also not submitted by the appellant. Since the application for refund filed by appellant .....

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ed. 7. The point to be noted here is that the appellant had filed refund claim dt.11.1.2013 on 23.1.2013. A claim for refund which is wanting certain documents and particulars cannot be a reason to hold that the claim was not filed within time. The conclusion arrived at by the Commissioner (Appeals) holding that the appellant had filed the refund claim only on 17.9.2014 which was received in this case on 9.10.2014 is based on OIO No.92/2012 dt. 30.2.2012 and has been filed beyond the stipulated .....

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High Court judgment is reproduced as under :- 12. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the records available, and in view of the decisions cited supra, it is noted that the petitioner had submitted the rebate claim on 5-11-2007, along with the relevant documents. The second respondent had returned the enclosures submitted by the petitioner, along with the rebate claim application, vide letter .....

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