2016 (6) TMI 238 - AT - Service Tax

Period of limitation - Denial of refund claim - banking services received for their authorized operations in SEZ - refund is allowed in terms of Notification No 9/2009 ST as amended - whether a separate application is required to be filed along with refund for seeking extension of time for filing the refund application or the ground for extension of stay along with the refund application is sufficient to condone the delay in filing the application. Held that - on the basis of appellant s argument that since the scheme was new and there was lot of confusion regarding the same on account of lack of knowledge, a separate application along with refund claim was not filed and keeping in view the decision of the Tribunal in the case of Rallies India Ltd Vs CC 2006 (6) TMI 280 - CESTAT, NEW DELHI , the impugned order is liable to be set aside and I do the same and remand both the appeals to the adjudicating authority to decide the claim of the appellant on merits and the appellant should produce before the adjudicating authority all the documentary evidence which is in his possession to claim the said refund. - Appeal allowed by way of remand

Summary

Issues:
1. Whether a separate application is required to be filed along with a refund for seeking an extension of time for filing the refund application.
2. Whether the time limit for filing a refund claim under Notification No 9/2009 ST can be extended by the adjudicating authority.
3. Whether the delay in filing the refund claim was beyond the control of the appellant.

Analysis:

Issue 1:
The appellant contended that no separate application for extension of time for filing a refund application is necessary, and the prayer for extension of time can be included in the refund application itself. The Tribunal's decision supported this argument, emphasizing a liberal approach in considering the condonation of delay. The appellant also cited a previous order by the Commissioner (Appeals) in their favor, highlighting the confusion due to the new scheme and lack of knowledge. Consequently, the impugned order was set aside, and both appeals were remanded to the adjudicating authority for a decision on the merits.

Issue 2:
The appellant argued that the time limit of six months stipulated in Notification No 9/2009 ST could be extended by the adjudicating authority before rejecting the refund claim. They emphasized that the reasoning in the impugned order, which denied the refund claim as time-barred due to lack of condonation within the stipulated period, was legally unsound. The Tribunal agreed with the appellant's position, noting that the delay was beyond their control, especially considering the lack of documentation from the banking companies providing services. The Tribunal directed the adjudicating authority to decide the claim within three months upon receiving the order.

Issue 3:
The appellant asserted that the delay in filing the refund claim was beyond their control, primarily due to the unfamiliarity with the new notification's requirements and the absence of proper documentation from service providers. They argued that the confusion and lack of knowledge should be considered in condoning the delay. The Tribunal acknowledged the appellant's challenges and emphasized the need for a liberal approach in such cases. Consequently, the impugned order was set aside, and the adjudicating authority was instructed to evaluate the claim based on the evidence provided by the appellant.

In conclusion, the Tribunal's decision focused on the procedural aspects of filing a refund claim under Notification No 9/2009 ST, emphasizing the need for a liberal approach in cases involving delays beyond the appellant's control. The judgment highlighted the importance of considering the unique circumstances of each case and directed the adjudicating authority to reevaluate the appellant's claim based on the evidence presented.