2020 (2) TMI 1054 - AT - Central Excise

Refund of Central Excise Duty - allegation that the appellants were indulging in evasion of Central Excise Duty - rejection of refund on the ground of time limitation - HELD THAT - The Delhi Bench of the Tribunal in the case of MAHANAGAR TELEPHONE NIGAM LTD. VERSUS C.S.T. - DELHI 2016 (12) TMI 1276 - CESTAT NEW DELHI was seized of a more or less similar issue and was dealing with refund under Section 11B of the Central Excise Act, 1944, as in the case on hand. The Delhi Bench after considering the rival contentions has held that the refund claim finally stands settled only with the order of the apex court. Hence the date of the judgment of the Hon. Supreme Court is to be considered for determining the relevant date in this case i.e. 4.7.2012. The refund claim stands filed on 21.8.2012, which is within a period of 1 year as permitted under Section 11(B), thus, refund claim is filed in time. From the discussions of the Delhi Bench, which has found that the claim for refund, which was made after the dismissal of SLP, was correct and the same applies to the case on hand also, since upon the Revenue preferring an appeal against the Order-in-Appeal (with the assessee also filing its cross-objection), the matter was sub judice before the Tribunal and naturally, when the matter was lis pendens, no such application for refund could be filed. The appellant s claim for refund is not hit by limitation - Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Rejection of refund of ?2,00,000 by the assessee
- Denial of refund on the ground of limitation

Analysis:
The appeal was filed by the assessee against the rejection of a refund of ?2,00,000. The Advocate for the appellant argued that the denial of refund based on limitation was unjustified. He referred to a case law and contended that the refund claim was within time as per the doctrine of merger. The Authorized Representative for the Revenue supported the findings in the impugned order. The Member (Judicial) considered the contentions and reviewed the orders of lower authorities. It was noted that the Revenue did not dispute the eligibility of the assessee for refund except for the limitation issue.

The Member (Judicial) referred to a case decided by the Delhi Bench of the Tribunal involving a similar issue of refund under Section 11B of the Central Excise Act, 1944. The Delhi Bench held that once the Supreme Court admitted the Revenue's Special Leave Petition (SLP), the decision of the High Court merged with the Supreme Court's decision. The relevant date for determining the refund claim was considered to be the date of the Supreme Court's judgment. Applying the Delhi Bench's ratio, it was concluded that the appellant's refund claim was not time-barred as it was filed within the permissible period under Section 11B.

Therefore, the impugned order denying the refund on the ground of limitation was set aside, and the appeal was allowed with any consequential benefits as per law. The decision was pronounced in the open court on 20.01.2020.