TMI Blog2019 (2) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... rejection for want of jurisdiction was passed after more than 10 months. The Hon'ble Apex Court has held in various decisions that the procedural lapses cannot take away substantive remedy - reliance placed in the case of MANGALORE CHEMICALS & FERTILIZERS LTD. VERSUS DEPUTY COMMISSIONER [1991 (8) TMI 83 - SUPREME COURT OF INDIA] - Also, in several decisions, it has been held by various courts that the prosecution of the case before the wrong forum has to be excluded for considering the limitation. The appellant has to be given a further chance to present their claims before the correct jurisdictional authority - the matter requires to be remanded to the Customs House, Tuticorin, who is directed to process the refund claims - appeal allowed by way of remand. - C/42230/2014 - FINAL ORDER NO. 43031/2018 - Dated:- 4-12-2018 - Smt. Sulekha Beevi C.S, Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) For the Appellant: Shri P. Sridharan, Adv. For the Respondent: Shri K. Veerabhadra Reddy, ADC (AR) ORDER Per Bench: Appellant is engaged in the business of Erection, Commissioning and Maintenance of Wind Operated Electricity Generator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had furnished all documents to support the refund claims, the same has been rejected merely on a technical ground. The officers ought to have conducted preliminary scrutiny of the claims and ought to have pointed out the deficiency, if any, so that the appellant could resubmit the refund claims before the proper jurisdiction within time. In fact, before passing the order, the adjudicating authority did not even give a personal hearing to the appellant, which is violation of natural justice. The appellants did not get opportunity of personal hearing, and could not explain their case or seek for transfer of the claims to the appropriate jurisdictional authority. They had filed a letter asking to accept and process the refund claims, and if not possible to forward the refund claims to the proper jurisdictional officer. The learned counsel relied upon the decision of the Hon'ble jurisdictional High Court in the case of M/s. PNP Polytex Pvt. Ltd., Vs Assistant Commissioner of Customs [Refunds], Chennai reported in 2018 (36) E.L.T.964 (Mad.) to argue that the refund applicant has to be given an opportunity of personal hearing. 3.1 It is further submitted by the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter appreciation, the details of the bill of entries, date of payment of duty, date of filing of refund claims etc., as tabulated in the impugned order is reproduced as below:- SL. NO. B.E.NO. DATE DATE OF PAYMENT OF DUTY DATE OF FILING OF REFUND CLAIM LAST DATE NO. OF DAYS BEFORE THE DUE DATE CLAIM AMOUNT (IN RS.) 01 5024974/27.10.2011 31.10.2011 26.10.2012 30.10.2012 4 55,70,515 02 5334198/29.11.2011 12.12.2011 26.10.2012 11.12.2012 46 13,83,560 03 3828341/17.06.2011 27.06.2011 11.06.2012 26.06.2012 15 25,39,627 04 3886959/24.06.2011 27.06.2011 11.06.2012 26.06.2012 15 30,47,554 05 3750142 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides that the importer shall file a claim for refund of the said Additional Duty of Customs paid on the imported goods with the jurisdictional Customs officer . The claims in respect of all the bill of entries pertained to clearances made through Customs House, Tuticorin. Therefore, the jurisdiction for processing of the refund claims would be Refund Section in Tuticorin Customs House. The appellant has filed the refund claims before the Customs House, Chennai. Instead of returning the refund claims after initial scrutiny stating that the same has been filed before wrong jurisdictional authority, the Deputy Commissioner of Customs has passed Order-in-Original rejecting the refund claims on 17.09.2013. Thus, after almost one year of presenting the refund claims, the department has rejected the refund claim stating that the reason of lack of jurisdiction. The appellant contends that the refund claims ought to have forwarded to the proper jurisdictional authority. The Commissioner (Appeals) has discussed this aspect of wrong jurisdiction in detail and then upheld the rejection. The discussion made by Commissioner (Appeals) would be relevant for further discussion in this matter, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Refund Application (Forms) Regulation 1995, the proper officer has to intimate the deficiencies of the application to the claimant within 10 days of receipt of the claim. The order of rejection for want of jurisdiction was passed after more than 10 months. 7. Be that as it may, the issue for consideration is whether the remedy of refund, which is substantive would stand foreclosed merely with the procedural defect of filing before wrong jurisdiction. The Hon'ble Apex Court has held in various decisions that the procedural lapses cannot take away substantive remedy [Mangalore Chemicals Fertilizers Ltd Vs Deputy Commissioner-1991 (55) ELT 437 (S.C.)]. The appellant has contended that the person looking after the refund had inadvertently filed the refund claims before the wrong jurisdiction. When the refund claims have been filed within the time and it also conforms all other legal requirements, the rejection by the Refund Processing Authority on lack of jurisdiction after sleeping over the claim for almost one year in our view would be gross injustice to an assessee. The argument of the learned Authorised Representative that the appellants have deliberately filed the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, Service Tax on 28-2-2008 with acknowledgement with proper authority in time i.e. within 60 days and fulfilled the condition in the Notification No. 41/07-S.T., dated 6-10-2007. He has, therefore, held that the respondent-assessee's refund claim of service tax under Notification falls within the purview of the Assistant Commissioner/Deputy Commissioner of the Central Excise having jurisdiction over the factory/ manufacturing unit. The concerned authority has returned the claim on 8-4-2008 with a direction to file the claim to the jurisdictional Assistant Commissioner or Deputy Commissioner of Central Excise. He, therefore, found that the application of refund was filed within time limit and this was returned by the authorities and the respondent filed the same after lapse of time and as such, it is not barred by limitation. This finding was confirmed by the Tribunal with an observation that there was no infirmity in the view taken by the Commissioner (Appeals). The Tribunal has also reiterated that the original refund claim was filed within time before wrong authority. As such, subsequent refiling of refund claim beyond the limitation period should not be held agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
