9911796707
TMI Blog2008 (9) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of removal. The refund claims were returned to the appellant on the grounds that the claims were incomplete without any documentary evidence or proper grounds. Subsequently, appellant filed additional documents and re-submitted the refund claims after a lapse of more than one year. Accordingly 9 S.C.N.'s were issued alleging that the re-submission of the refund claims with additional documents was beyond the period of one year from the date of payment of duty as provided under Section 11B of the CEA, 1944 and the refund claims had become time barred. These 9 SCN's were subsequently adjudicated by the Dy. Commissioner, Division-II, Goa vide O-I-O No. DCCEx(Div.II) 19/2005-06, dated 21-4-2005 thereby sanctioning 8 out of the 9 refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. I have examined the facts of the case I see that while clearances of the goods took place in November 2000 to April 2001, the party originally filed the refund claim on 13-11-2001 to 30-11-2001. In the case of all the 9 claims, the claims were rejected on count of incomplete documents on 6-2-2002 and 13 months after that on 27-3-2003 the party re-submitted the claim with documents supposed to have been complying with the conditions of unjust enrichment the Deputy Commissioner while rejecting one of the claim as time barred, allowed the rest of the 8 claims on the grounds that the original date of submission on 28-11-2001 was the relevant date. He cited a number of judgments in that context. Regarding the 1st claim he rejected the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned. In addition to the above, I am also in agreement with my predecesor's findings in Para 5 and 6 of the Order-in-Appeal No. GOA/CEX/SNS/69/2006, dated 27-6-2006. In light of the above, I set aside Order-in-Original No. DCCEX (Div.II19/2005-06, dated 21-4-2005) as far as sanctioning of the 8 refund claims amounting to Rs. 6,45,239/- is concerned and uphold it as far as rejecting the refund claim of the 9th claim of Rs. 1,04,014/- is concerned. The department may proceed ahead and recover the sanctioned amount of Rs. 6,45,239/- so far as the 8 refund claims are concerned". 4. The ld. Counsel appearing on behalf of the appellant submits that they had filed a refund claim within time i.e. in November 2001. The office of the Dy. Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. Commissioner (Appeals) was correct in rejecting the refund claim of the appellants. 6. I have heard both sides and perused the records. It is undisputed that the refund claims as filed by the appellant if the first instance in the month of November 2001 were within time. The letter of the office of the Dy. Commissioner of Central Excise, Division Panji Goa dt. 26-2-2002 merely returned the refund claim filed by the appellants. In order to appreciate the correct situation, contents of the letter is reproduced, which are as under:- "Please refer to your letter No. DIPL/COMM, dated 28-11-2001 and this office letter dated 12-12-2001. No documentary evidence has been submitted by you in this office till date. Since the claim is incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was under an obligation to require the assessee to submit the requisite documents. Refund is the right of the assessee and should not be taken away by the State especially with the approach of the kind that was adopted in the present case. The appeal is dismissed on merits". I find that the issue in current case is squarely covered, by the decision of Hon'ble High Court of Delhi. Identical issue has been decided by the Hon'ble High Court of Gujarat. I am of the considered view that the impugned order is unsustainable. Accordingly, I set aside the impugned order and hold that the appellant is eligible for the refund of the amount of duty of Rs. 6,45,239/- as ordered by the adjudicating authority. Appeal allowed with consequential relief ..... X X X X Extracts X X X X X X X X Extracts X X X X
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