2018 (9) TMI 1429 - AT - Central Excise

Rectification of Mistake - the specific rejection of availment of credits by the Commissioner (Appeals) on the ground of non-production of original documents was not dealt by the Tribunal specifically - Held that - The signature of the Hon ble Member in the said order is not a dated signature in conformity to the rule contained in chapter xiii of the CESTAT judicial manual and the date of order, though has been mentioned in the order as 21.07.2017, pronouncement date is not reflected therein while the order sheet of the court dated i.e. 21.07.2017 indicates that detail order to follow (DOTF). The rejection order passed by the Commissioner of appeals upon non receipt of original copies, in the normal circumstances, would not have been considered proper, had he not raised his doubt regarding wrong calculation of the refund claim without documentary evidence in the shape of original shipping bills, invoices etc., being placed before him to justify such calculation and the same finds support of the clarificatary circular no. 112/6-2009-ST dated 12.03.2009 issued by the board which authorises the authority granting refund to insist on production of original documents only in case of requirement of indepth enquiry. The ROM filed by the Appellant/Applicant is rejected as not maintainable since departmental authorities are duty bound to honour the order of the Tribunal - ROM Application dismissed.

Summary

Issues:
Rectification of order regarding credit availed after conversion of EOU to DTA and rejection of availment of credits due to non-production of original documents.

Analysis:
1. The ROM application sought rectification of an order allowing credit availed after EOU to DTA conversion, subject to document verification. The Tribunal did not address the specific rejection of credits by the Commissioner (Appeals) due to non-production of original documents, causing inconvenience to the appellant seeking a refund.

2. During the hearing, the appellant's counsel highlighted a case law allowing the submission of copies of shipping bills and photocopies of EP duly attested by the exporter for claiming refunds if originals are misplaced. The AR for the department objected to the ROM, citing a violation of the procedure under section 35C(2) and the requirement of filing original documents as per Cenvat Credit rule 5(6).

3. The Tribunal observed discrepancies in the order dated 21.07.2017, noting the absence of a dated signature and the pronouncement date. The computation of the limitation period for rectification was based on the date of receipt of the order by the applicant, following precedents set by the Hon'ble High Court of Bombay and Ahmedabad.

4. Regarding the requirement of original documents for claiming a refund, the Tribunal found that the rejection order by the Commissioner of appeals lacked proper justification without documentary evidence like original shipping bills and invoices. The circular no. 112/6-2009-ST allowed authorities to insist on original documents only for in-depth inquiries, aligning with judgments like Unimax Granites, which supported the submission of copies for refund claims.

5. The Tribunal concluded that the order dated 21.07.2017, subjecting the refund claim to document verification without specifying original or copy submission, was purposeful and not erroneous. Hence, the ROM filed by the appellant was rejected as departmental authorities were obligated to adhere to the Tribunal's order and relevant decisions cited in the order.

6. In the final pronouncement on 31-08-2018, the Tribunal maintained the rejection of the ROM, emphasizing the duty of departmental authorities to comply with the Tribunal's orders and established legal principles.

This detailed analysis covers the issues raised in the judgment, addressing the rectification sought, the requirement of original documents for refund claims, and the procedural aspects governing such matters.