2014 (10) TMI 159 - AT - Central Excise

Waiver of pre deposit - Refund on input service credit - Notification No.41/2007-(ST) dated 6.10.2007 - Held that - Commissioner (Appeals) already accepted that the eligibility of refund claim for export made from 1.10.2008 to 31.12.2008 only and not for the export made prior to 1.10.2008. Prima facie, we find that the show-cause notice itself restricted the refund to ₹ 4,22,062/- and main allegation in the show-cause notice that the assessee has submitted the bills pertaining to over one year from the date of LET export as per the notification. Prima facie, we find that the Commissioner (Appeals) observed that the assessee is strictly eligible for refund of the duty which is within the limitation. Hence, the applicant made out a prima facie case for waiver of entire amount of dues. Accordingly, we grant wavier of predeposit of the entire amount of dues and stay its recovery during the pendency of the appeal. - Stay granted.

Issues:
1. Refund claim under Notification No.41/2007-(ST) dated 6.10.2007 as amended.
2. Restriction of refund amount by the original authority.
3. Appeal filed by Revenue against the sanction of the refund claim.
4. Appeal filed by the assessee against the rejection of the refund claim.
5. Commissioner (Appeals) decision on the appeal filed by the assessee.
6. Commissioner (Appeals) decision on the appeal filed by Revenue.
7. Fulfillment of conditions under the notification for refund claim.
8. Time limit for the refund claim as per the notification.

Analysis:

1. The applicant, engaged in manufacturing electrical insulators, claimed a refund on input service credit under Notification No.41/2007-(ST) for the quarter October 2008 to December 2008. The refund amount was initially restricted to a lower sum by the original authority.

2. The original authority sanctioned a partial refund and rejected a balance amount related to the services of a C&F Agent, citing the service's inclusion under a later notification effective from 7.12.2008. This led to appeals from both the Revenue and the assessee.

3. The Commissioner (Appeals) rejected the appeal filed by the assessee, while allowing the appeal filed by the Revenue against the sanction of the refund claim. The assessee argued that since no appeal was filed against the earlier order by the Commissioner (Appeals), the subsequent order should be set aside.

4. The Revenue contended that the assessee had not fulfilled the conditions specified in the notification for the refund claim and had exceeded the time limit for making the claim.

5. Upon review, the Tribunal found that the eligibility for the refund claim was limited to exports made between 1.10.2008 to 31.12.2008. The Tribunal noted that the show-cause notice had already restricted the refund amount and that the Commissioner (Appeals) had acknowledged the eligibility of the refund within the specified limitation.

6. The Tribunal did not find merit in the Revenue's argument that the refund claim was beyond the limitation period. It observed that the Commissioner (Appeals) had determined the applicant's eligibility for the refund within the prescribed timeframe. Consequently, the Tribunal granted a waiver of the entire amount of dues and stayed the recovery during the appeal's pendency.

7. In conclusion, the Tribunal granted the stay application, highlighting the prima facie case made by the applicant for the waiver of the entire amount of dues based on the Commissioner (Appeals)'s observations regarding the eligibility for the refund within the specified limitation period.

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