2022 (1) TMI 391 - AT - Central Excise

Refund claim of the pre-deposit - Rejection on the ground of time bar in as much as the appellant has filed the refund claim on 25.05.2018 after the final order was passed by the Commissioner (Appeals) on 24.04.2009 - HELD THAT - The amount paid by the appellant is clearly a pre-deposit, as per the stay order passed by the Commissioner (Appeals) dated 20.06.2008. It is found from Board Circulars, Circular dated 02.01.2002 and Circular dated 16.09.2014, which are binding on the departmental Officer, the time limit of one year prescribed under Section 11B particularly in respect of pre-deposit which is by an order of the appellate forum, shall not apply. Moreover there is a reason for filing appeal on 25.05.2018 by the appellant that the departments appeal before the CESTAT was pending and appellant had filed the refund claim immediately after the Tribunal s order dismissing the departments appeal on 26.04.2018 for this reason also the refund cannot be rejected on time bar. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejection on the ground of time bar due to delay in filing after Commissioner (Appeals) order.

Analysis:
The appellant's refund claim of the pre-deposit, made as per the Commissioner (Appeals) direction, was rejected by the department citing time bar as the appellant filed the claim after one year from the Commissioner (Appeals) final order. The appellant contended that the amount paid was a pre-deposit, not duty, as per the stay order, thus Section 11B time limit does not apply. The appellant filed the refund claim after CESTAT's order rejecting the department's appeal, relying on various judgments and circulars supporting refund of pre-deposit without the Section 11B process.

Analysis:
The Revenue reiterated that the refund claim should have been filed within one year of the Commissioner (Appeals) order, deeming the delay time-barred under Section 11B. However, the Member (Judicial) noted that the amount paid was indeed a pre-deposit as per the stay order, supported by Board Circulars exempting pre-deposit refunds from the Section 11B time limit. The appellant's filing delay was due to the pendency of the department's appeal before CESTAT, justifying the late refund claim.

Analysis:
Considering the submissions and records, the Member (Judicial) found the appellant's payment to be a pre-deposit under the stay order. Referring to Board Circulars exempting pre-deposit refunds from Section 11B time limit, the Member concluded that the time limit does not apply to pre-deposits. The appellant's delay in filing the refund claim after CESTAT's order dismissing the department's appeal was justified, leading to setting aside the impugned order and allowing the appeal with consequential relief.

This detailed analysis of the judgment highlights the key legal arguments, interpretations of relevant laws and circulars, and the ultimate decision by the Appellate Tribunal CESTAT Ahmedabad in favor of the appellant regarding the time-barred refund claim issue.