2020 (3) TMI 369 - AT - Central Excise

Refund of Excise Duty - doctrine of merger - time limitation - section 11B of CEA - HELD THAT - Delhi Bench of the Tribunal in the case of M/s. Mahanagar Telephone Nigam Ltd. 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. 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:
Appeal against rejection of refund of ?3,00,000 - Claim hit by limitation or not.

Analysis:
The appeal was filed against the rejection of a refund of ?3,00,000 by the assessee. The Advocate for the appellant argued that the denial of refund based on limitation was unjustified. He referred to a case to support the doctrine of merger, stating that the refund claim was within time from the date of receipt of the order. The Revenue, represented by the Authorized Representative, supported the findings in the impugned order. The Member (Judicial) considered the contentions and reviewed the orders of the 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 observed a similar issue dealt with by the Delhi Bench of the Tribunal in a previous case. The Delhi Bench had held that once the Supreme Court admitted the Revenue's Special Leave Petition (SLP), the decision of the High Court was in jeopardy. 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 claim for refund was not hit by limitation. Therefore, the impugned order was set aside, and the appeal was allowed with any consequential benefits as per law.

In conclusion, the judgment addressed the issue of whether the appellant's claim for refund of ?3,00,000 was hit by limitation. By analyzing the doctrine of merger and the relevant date for determining the refund claim, the Member concluded that the claim was filed within the permissible time frame. As a result, the impugned order was set aside, and the appeal was allowed with any consequential benefits as per law.