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CX – Limitation – When refund claims have been returned and not rejected and when they have been filed again, such filing has to be considered as resubmission of refund claims and not as fresh claims: CESTAT

2019-TIOL-2460-CESTAT-MAD

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH, CHENNAI
COURT NO. III

Excise Appeal No. 40286 of 2019

Arising out of Order-in-Appeal No. 628/2018 (CTA-I), Dated: 05.12.2018
Passed by the Commissioner of G.S.T. & Central Excise (Appeals-I), 26/1, Mahatma Gandhi Marg, Nungambakkam, Chennai – 600034

WITH
Excise Appeal No. 40287 of 2019

Arising out of Order-in-Appeal No. 629/2018 (CTA-I), Dated: 05.12.2018
Passed by the Commissioner of G.S.T. & Central Excise (Appeals-I), 26/1, Mahatma Gandhi Marg, Nungambakkam, Chennai – 600034

Date of Hearing: 03.06.2019
Date of Decision: 03.06.2019

M/s CHENNAI PETROLEUM CORPORATION LTD
MANALI, CHENNAI-600068

Vs

COMMISSIONER OF GST AND CENTRAL EXCISE
CHENNAI NORTH COMMISSIONERATE
NO. 26/1, MAHATMA GANDHI ROAD, NUNGAMBAKKAM
CHENNAI-600034

Appellant Rep by: Shri M Kannan, Adv.
Respondent Rep by: Shri S Govindarajan, AR

CORAM: Sulekha Beevi C S, Member (J)

CX – The assessee-company filed two claims for refund of excess duty paid by them – Such refund claims were rejected due to non-submission of the requisite documents – The assessee filed the refund claims again, but they were rejected this time on grounds of being time barred – On appeal, the Commr.(A) sustained the decision of the refund sanctioning authority – Hence the present appeals.

Held – The assessee initially filed the refund claim within the one year limitation period – Such refund claims were then returned by the sanctioning authority – Perusal of such letter shows that it does not mention the date which the assessee could re-submit the refund claims along with necessary documents – Besides, such letter did not reject the refund claims on any ground – The same is not an order in which the refund sanctioning authority applied mind for reaching a decision – Such claims were merely returned to the assessee – When the refund claims have been returned and not rejected and when they have been filed again, such filing has to be considered as resubmission of the refund claims and not as fresh refund claims – Hence the refund claims re-submitted by the assessee are not barred by limitation – The matter warrants remand to the refund sanctioning authority to decide the same on merits – The orders rejecting the applications are quashed: CESTAT

Assessee’s appeals allowed

Case laws cited:

M/s. United Phosphorus Ltd. Vs. Union of India reported in 2005 (184) E.L.T. 240 (Guj.)… Para 2.3…followed

Commr. of Service Tax, Mumbai Vs. M/s. Reliance Communication Ltd – 2008-TIOL-1511-CESTAT-MUM… Para 2.3…followed

M/s. Balmer Lawrie & Co. Ltd. Vs. Commissioner of C.Ex., Kolkata-VI – 2014-TIOL-3146-CESTAT-KOL… Para 2.3

FINAL ORDER NOS. 40824-40825/2019

Per: Sulekha Beevi:

Brief facts of the case are that the appellant filed two refund claims for refund of Rs. 6,63,370/- and Rs. 4,85,221/- being the excess Duty paid by them. The refund claims were returned to the appellant vide letter dated 06.01.2017 on account of not furnishing sufficient documents. The appellant thereafter resubmitted the refund claims on 02.03.2018. The said refund claims were rejected stating that they were time-barred. In appeal, the Commissioner (Appeals) vide impugned order dated 05.12.2018 upheld the decision of the refund sanctioning authority. Hence, these appeals.

2.1 On behalf of the appellant, Ld. Advocate Shri. M. Kannan appeared and argued the matter. He furnished the letter issued by the refund sanctioning authority dated 06.01.2017 and submitted that the refund claims filed by the appellant have not been rejected by the Department. The same have only been returned for want of necessary documents. The appellant has thereafter resubmitted the refund claims along with necessary documents.

2.2 It is also pointed out by him that the Department has not mentioned the period by which the appellant has to resubmit the refund claims. That therefore the order passed by the authorities below rejecting the refund claims as being time-barred is illegal.

2.3 To support his arguments, he relied upon the decision of the Hon’ble High Court of Gujarat in the case of M/s. United Phosphorus Ltd. Vs. Union of India reported in 2005 (184) E.L.T. 240 (Guj.), Commr. of Service Tax, Mumbai Vs. M/s. Reliance Communication Ltd. reported in 2008 (11) S.T.R. 258 (Tri. – Mum.) = 2008-TIOL-1511-CESTAT-MUM and M/s. Balmer Lawrie & Co. Ltd. Vs. Commissioner of C.Ex., Kolkata-VI reported in 2015 (315) E.L.T. 100 (Tri. – Kol.) = 2014-TIOL-3146-CESTAT-KOL .

3.1 The Ld. AR Shri. S. Govindarajan appeared on behalf of the Department. He supported the findings in the impugned order. It is argued by him that while filing the refund claim originally, the appellant had not submitted any of the necessary documents. The refund claims have thus been rightly returned for want of documents for processing the refund. The appellant ought to have filed it within reasonable time and therefore, the same have been rejected on resubmission by the appellant.

2.2 He also referred to Chapter 9 of the CBEC Central Excise Manual relating to refund, to assert that a refund claim can be taken as filed only when all the necessary documents are submitted along with the refund claim. Since the claim was incomplete with regard to the necessary documents, the authorities below have rightly returned the same.

3. Heard both sides.

4. The issue is with regard to the rejection of refund claims on the ground of being time-barred.

5. The appellant had initially filed the refund claims on 15.12.2016. Undisputedly, he has filed the refund claims within the limitation period of one year. The said refund claims were returned by the refund sanctioning authority on 06.01.2017.

6.1 On perusal of this letter dated 06.01.2017, it is seen that the refund claim is returned as the same cannot be processed due to lack of documents. The said letter does not mention the date by which the appellant can resubmit the refund claims along with necessary documents. Further, it has to be stated that the said letter dated 06.01.2017 does not ‘reject’ the refund claims on any ground. It is not an order in which the refund sanctioning authority has applied his mind for reaching a decision. The refund claims have been merely ‘returned’ to the appellant.

6.2 It is true that the refund sanctioning authority cannot process the refund claim without necessary documents. However, the time by which the appellant can resubmit the refund claims along with the documents ought to have been mentioned by the refund sanctioning authority. In the absence of such a time-limit for resubmitting the refund claims, the appellant has sought to collect the documents and resubmit the refund claims on 02.03.2018. When the refund claims have been returned and not rejected and when they have been filed again, such filing has to be considered as resubmission of the refund claims and not as fresh refund claims.

7. The arguments put forward by the Ld. AR for the Department referring to Chapter 9 of the CBEC Manual does not support the view taken by the authorities below for the reason that the letter dated 06.01.2017 only returns the refund claims and does not reject or dismiss the same.

8. In M/s. Reliance Communication Ltd. (supra) it was held that when the refund claim is resubmitted, the same cannot be considered as a fresh refund claim. The provisions contained in the CBEC Manual of Supplementary Instructions were considered in this decision. Further, in M/s. United Phosphorus Ltd. (supra), it was held that the refund sanctioning authority cannot part with the refund claim by returning the same. He is obliged to pass an order on the merits of such application. When the refund sanctioning authority who received the original refund claims has not rejected these refund claims on merits and has merely returned the same, further filing of the refund claims ought to be considered only as resubmission and not as fresh claims.

9. Relying upon the decisions put forward by the Ld. Counsel for the appellant and also as per the discussions made above, I am of the view that the refund claims in these appeals, which are resubmitted by the appellant, are not barred by limitation. Hence, the matter is remanded to the refund sanctioning authority who shall decide these claims on merits. The impugned orders are set aside.

10. The appeals are allowed.

(Dictated and pronounced in open court)

(Paras are numbered as per the original text: Editor)

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