2022 (2) TMI 1075 - AT - Service Tax

Refund of service tax - rejection on the ground of time limitation - first refund claim was withdrawn - second refund claim should be treated fresh or not? second appeal was filed after stipulated time period, i.e. one year as prescribed section 11B of Central Excise Act, 1944 - HELD THAT - There is no dispute that the appellant had filed the refund claim on 01/06/2017 for an amount of ₹ 12,25,023/-. Thereafter, on the audit query, the appellant had decided to reduce the refund claim and, therefore, withdrew the earlier claimed and thereafter claim for ₹ 7,92,262/- which is out of the total amount of ₹ 12,25,023/- for which earlier refund filed on 01/06/2017. With this fact, since the appellant had filed the refund claim for amount of ₹ 12,25,023/- which was well within the stipulated time period of 01 year as prescribed under section 11B of Central Excise Act, 1944, the subsequent refund claim of ₹ 3 ST/12166/2019-SM 7,92,262/-must be treated as in continuation of the earlier refund as this amount is out of the total refund of ₹ 12,25,023/-. Therefore, the date of filing of refund claim should be reckoned as the claim of first filing of refund claim and not as per the date of filing the revised refund claim. The appellant s refund claim cannot be rejected on the basis of time bar. The impugned order is set aside and appeal is allowed by way of remand to the Adjudicating Authority for passing a fresh order after considering the others facts and issues such as unjust enrichment, etc but without going into the limitation - appeal allowed by way of remand.

Summary

Issues Involved:
Refund claim rejection on the ground of time bar.

Analysis:
The appeal was against the rejection of a refund claim solely on the basis of being time-barred. The appellant initially filed a refund claim within the stipulated time period, but later withdrew it on department advice due to an audit objection. Subsequently, a new refund claim was submitted. The appellant argued that the second claim was a continuation of the first, thus not time-barred. The Revenue contended that since the first claim was withdrawn, the second claim should be treated as fresh and was filed after the prescribed time period. The Tribunal examined the facts and relevant legal precedents cited by both sides.

The Tribunal noted that the appellant had initially filed a refund claim within the prescribed time period. Even though the appellant later reduced the claimed amount and filed a new claim, the Tribunal considered the subsequent claim as a continuation of the original claim. The Tribunal relied on legal precedents to support this view, emphasizing that the date of filing the original claim should be considered for determining the timeliness of the subsequent claim. Therefore, the Tribunal held that the appellant's refund claim could not be rejected on the basis of being time-barred.

As a result, the impugned order rejecting the refund claim on the grounds of time bar was set aside. The appeal was allowed, and the case was remanded to the Adjudicating Authority for a fresh decision, considering other aspects such as unjust enrichment, without delving into the limitation issue. The appeal was allowed by way of remand to the Adjudicating Authority for further proceedings.