2010 (9) TMI 555 - HC - Service Tax

Limitation - Refund claim on Service tax paid on input services used in export of goods - First time the respondent-assessee filed the refund claim to the Deputy Commissioner Service Tax 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 - 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 - 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 - 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 against the assessee - Impugned order sustainable.

Summary

Issues:
1. Whether the period of limitation can be excluded if a rebate claim application is filed before an authority not competent to sanction the refund claim?
2. Whether the Tribunal erred in extending the period of limitation without provision for condonation of delay?

Analysis:
1. The primary issue in this case is the rejection of a refund claim by the respondent-assessee due to the application not being filed within the specified time limit. The Assistant Commissioner of Central Excise rejected the refund claim of Rs. 5,72,628 on the grounds of being time-barred. However, the Commissioner (Appeals) overturned this decision, stating that the application was filed within the time limit. The Tribunal also upheld this decision, emphasizing that the original refund claim was filed within the time frame, even if it was initially submitted to the wrong authority.

2. The Revenue argued that the statutory time limit for filing a refund claim is 60 days from the end of the relevant quarter of export. They contended that the application should have been made to the Assistant Commissioner or Deputy Commissioner of Central Excise as per the notifications issued. The Revenue insisted that the Tribunal erred in considering the wrongly filed refund claim as valid within the time limit, as the application was initially submitted to the wrong authority. However, the appellate authorities found that the original application was filed within the specified time, albeit to the wrong authority, and therefore, not time-barred.

3. The Commissioner (Appeals) and the Tribunal both concluded that the original refund claim, although initially submitted to the wrong authority, was filed within the statutory time limit. They emphasized that since the application was returned by the authorities and subsequently refiled after the time limit, it should not be considered as barred by limitation. The appellate authorities considered these findings as factual and concluded that no legal question arose from the Tribunal's decision. Therefore, they dismissed the appeal, affirming the lower authorities' decisions.

In summary, the High Court upheld the decisions of the Commissioner (Appeals) and the Tribunal, ruling that the original refund claim was filed within the prescribed time limit, even though it was initially submitted to the wrong authority. As a result, the appeal was dismissed, and no legal question was found to arise from the Tribunal's order.