2013 (2) TMI 23 - AT - Service Tax

Delay in filing refund claim - refund under Notification No. 15/2009 dated 20.5.2009 refund should be filed within six months from the date of actual payment of service tax - Held that - The adjudicating authority as well as the FAA has not considered the representation made by the appellant along with the reply to the show cause notice which specifically states that due to the distance between their head office and the factory premises, this information was not captured in the general accounts of the appellant. As this letter should have been considered by the lower authorities in its proper perspective and a view should have been taken it was ignored. Therefore, both the lower authorities should be given a chance to reconsider the issue - See APK Identification vs. CCE Noida 2012 (5) TMI 46 - CESTAT, NEW DELHI remit the matter back to the adjudicating authority to reconsider the issue afresh.

Summary

Issues:
1. Eligibility of refund claim under Notification No. 15/2009.
2. Consideration of condonation of delay in filing the refund claim.
3. Failure of lower authorities to consider appellant's representation.

Analysis:

Issue 1: Eligibility of refund claim under Notification No. 15/2009
The appellant filed a refund claim under Notification No. 15/2009 for Rs. 47,858, but the adjudicating authority found that the payment for services was made from 08.9.2009 to 20.3.2010, which exceeded the six-month limit for filing the claim. Consequently, the authority sanctioned only Rs. 249 out of the total claim and rejected the balance amount of Rs. 47,609 citing Notification No. 09/2009-ST dated 03.3.2009 and Section 11B of the Central Excise Act, 1944.

Issue 2: Consideration of condonation of delay in filing the refund claim
The appellant submitted an application for condonation of delay along with the reply to the show cause notice, citing reasons for the delay in filing the refund claim. The appellant argued that the lower authorities failed to consider this application properly. The appellant referred to Clause 2(f) of Notification 9/2009-ST, emphasizing the provision for condonation of delay by the jurisdictional Assistant Commissioner or Deputy Commissioner of the Central Excise.

Issue 3: Failure of lower authorities to consider appellant's representation
Upon review, it was observed that both the adjudicating authority and the first appellate authority did not consider the representation made by the appellant regarding the delay in filing the refund claim. The appellant explained that due to the distance between their head office and factory premises, the information was not captured in the general accounts. The presiding judge noted that this letter should have been considered by the lower authorities. Additionally, a judgment in the case of APK Identification vs. CCE Noida was cited to support the need for proper consideration of such representations.

In conclusion, the presiding judge set aside the impugned order and remitted the matter back to the adjudicating authority for a fresh consideration. The adjudicating authority was directed to reconsider the issue in light of the show cause notice, replies by the appellant, and the application for condonation of delay. The judge emphasized the importance of following the principles of natural justice in reaching a conclusion. The appeal was allowed by way of remand to the adjudicating authority.