AI Structured Summary
Not yet generated for this judgment
Judgment
Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal.
We have heard ld. DR appearing for the Revenue. None appeared for the respondent.
The respondents were engaged in construction of the residential complex inasmuch as they did not satisfy the definition of the said category, they
filed a refund claim on 30.05.2009 for the service tax paid by them during the period May, 2008 to Jan. 2009. Certain objections were raised by the
jurisdictional Central Excise Authorities as regards the proper format, etc. for filing the refund claim. Accordingly, the respondent removed the defects
and deficiencies and filed the claim in proper format on 6.1.2010 .
The lower authorities by adopting a view that the subsequent date of filing the refund claim on 6.1.2010 is the proper relevant date for the purpose
of limitation, initiated proceedings against them for denial of refund claim on the ground of limitation. The proceedings so initiated resulted in passing of
an order by the adjudicating authority denying the refund claim.
The said order was challenged before the Commissioner (Appeals), who observed that inasmuch as the assessee has initially filed its claim for
refund of service tax on 13.05.2009, by way of addressing a letter to the Revenue, which was being adjudicated and subsequently, the refund was
filed on 6.1.2010, the first date of filing the refund claim, though not in proper format, has to be treated as the actual date of filing the refund. If the
said date is adopted, the claim is well within the period. Accordingly, he allowed the appeal partly in respect of the period falling within the limitation.
Revenue’s contention in the present appeal is that the subsequent date when the assessee filed the refund claim in a proper format should be
taken as the relevant date.
Ld. DR submits that the letter dated 13.05.2009 was neither proper nor appropriate inasmuch as the same was not in the proper format and no
documents evidencing any payment of service tax were attached with the same. It is only subsequently when objected by the Revenue, they filed a
proper application. As such, he submits that the appellate authority has wrongly extended the benefit of limitation to the assessee.
Having gone through the impugned order of the Commissioner (Appeals), we find that the facts are not disputed. Admittedly, the assessee filed the
claim for the first time on 13.05.2009, which may not be in a proper format. The appellate authority has referred to various decisions of the Tribunal, in
support of conclusion that the original date of filing the refund claim “to be taken as the relevant date for the purpose of limitationâ€. On defects
pointed out by the department, subsequent date of filing the revised refund claim cannot be taken into consideration for deciding the limitation issue.
The Commissioner (Appeals) has referred to the Tribunal’s decisions in the case of CST, New Delhi Vs. HMA Udyog Pvt. Ltd. reported in 2010
(20) STR 827 (Tribunal-Delhi), CCE, Delhi-I Vs. Arya Export & Industries - 2005 (192) ELT 89 (Delhi), IGP Engineers Pvt. Ltd. Vs. CC, Chennai -
2008 (232) ELT 0481 (Mad.) and Goodyear India Ltd. Vs. CC, New Delhi - 2002 (150) ELT 331 (Tribunal-Delhi. Inasmuch as the issue is settled by
the various referred decisions of the Tribunal, we find no infirmity in the view adopted by the Commissioner (Appeals). However, we make it clear
that the refund claims would be subjected to the provisions of unjust enrichment.
Revenue’s appeal is rejected.
[Operative portion already pronounced]