2015 (10) TMI 33 - AT - Customs

Denial of refund claim - Bar of limitation - Held that - There is a mode of claim of refund prescribed by law. We do appreciate the difficulties of the appellant as to prevention to produce original document in support of claim of refund. But we fail to understand why appellant did not keep its refund claim alive before the adjudicating authority as and when shipment was made when as early as in 1999 it was aware that there arose liability towards Cess under the above Act till that was declared by the High Court of Madras in the judgement reported in 2008 (7) TMI 117 - HIGH COURT MADRAS as not leviable. Therefore, it can be said that all on a sudden 513 shipping bills shall not entitle the appellant to refund which is barred by limitation. Therefore, on that count, appellant fails to succeed - appellant has no claim to get the refund against all these shipping bills. However, we appreciate difficulty of appellant as to filing of original documents for the reason advanced by appellant and no leviability of Cess. But we do not consider it proper to hold contrary to the bar of limitation prescribed by law relating to refund. - Decided in favour of assessee.

Issues:
1. Interpretation of whether "shrimp" can be considered as "fish" for the purpose of levy under the Agricultural Produce CESS Act, 1940.
2. Refund of Cess based on the Tribunal and High Court judgments in favor of the appellant.
3. Failure of the Commissioner (Appeals) to consider the legal precedents set by the High Court of Madras.
4. Impact of unavailability of original shipping bills on the refund claim.
5. Application of time bar limitation on the refund claim for 513 shipping bills.
6. Argument regarding bonafide belief and lack of awareness of legal position by the appellant.
7. Department's contention on time bar for refund claim and appellant's delay in submitting the claim.
8. Evaluation of the appellant's failure to keep the refund claim active and the impact of the High Court judgment on the refund eligibility.
9. Lack of disclosure of successive claim by the appellant to the High Court of Madras and the limitation on refund claims.
10. Dismissal of Appeal No. C/233/2006 based on the decision in Appeal No. C/163/2006.

Analysis:
1. The case revolves around the interpretation of whether "shrimp" can be classified as "fish" under the Agricultural Produce CESS Act, 1940. The Tribunal and the High Court of Madras have ruled in favor of the appellant, establishing that "shrimp" does not fall under the definition of "fish" for levy purposes. This legal precedent forms the basis for the appellant's claim for a refund of Cess.

2. The appellant argues that the refund of Cess should be granted based on the favorable judgments from the Tribunal and the High Court of Madras. The Commissioner (Appeals) is criticized for not considering the legal precedents and denying the refund claim for 513 shipping bills related to shrimp exports.

3. The unavailability of original shipping bills due to reasons beyond the appellant's control is highlighted as a hindrance to the refund claim. The appellant's inability to produce these documents to the authorities is emphasized, leading to a denial of the refund based on the lack of documentation.

4. The issue of time bar limitation on the refund claim for the 513 shipping bills is raised. The appellant argues that the High Court judgment's impact on the refund eligibility should supersede the time bar limitation, considering the legal uncertainty prior to the court's decision.

5. The appellant's bonafide belief and lack of awareness regarding the legal position on Cess levy on shrimp exports are presented as factors justifying the delay in claiming the refund against the shipping bills. The appellant contends that the law was not clear until the High Court's judgment clarified the matter.

6. The Department asserts that the time bar for submitting the refund claim should be strictly adhered to, and failure to comply with the limitation debars the claim for consideration. The Department criticizes the appellant for the delay in submitting the refund claim despite being aware of the legal proceedings and directives.

7. The Tribunal evaluates the appellant's failure to actively pursue the refund claim and the lack of disclosure regarding the successive claim to the High Court of Madras. The Tribunal concludes that the appellant's delay and failure to adhere to the time bar limitation prevent the eligibility for a refund against the 513 shipping bills.

8. Ultimately, the Tribunal dismisses the appeal, citing the appellant's failure to meet the time bar limitation and the lack of disclosure of successive claims to the High Court of Madras. The dismissal of Appeal No. C/233/2006 is based on the decision in Appeal No. C/163/2006, emphasizing the consistent application of legal principles across both cases.

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