2022 (3) TMI 357 - AT - Central Excise

100% EOU - refund of unutilised CENVAT Credit - barred by time limitation or not - appeal filed before wrong forum - initially appellant filed refund claim in time, but the same was returned holding that the same has been filed before wrong forum after the expiry of due date of filing refund claim - HELD THAT - The appellant filed refund claim before the Assistant Commissioner of Service Tax on 04/02/2013 which was well within the time and the Assistant Commissioner of Service Tax returned the refund claim on 03/04/2013 after the last date of filing of refund claim. In fact, the learned Assistant Commissioner of Service Tax could have transferred the application of refund claim to the Assistant Commissioner of Central Excise itself, if that could have been done, the refund claim would not have been held time barred. Relying on the decision in the case of M/S ANURAG ENTERPRISES VERSUS COMMISSIONER OF CGST, GHAZIABAD 2019 (8) TMI 1299 - CESTAT ALLAHABAD wherein this Tribunal held that appellant having filed the refund claims with their jurisdictional Service Tax Authorities under a bona fide belief that the claims have to be dealt with by him, and if the concerned office was not having jurisdiction, the reasonable course of action on th part of the officer was to transfer the claim to the relevant office having jurisdiction to decide the same, under intimation to the assessee. Also, Hon ble High Court of Gujarat in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS AIA ENGINEERING LTD. 2010 (9) TMI 555 - GUJARAT HIGH COURT , was of the view that the application of refund was filed within time limit and which was returned by the authorities and the respondent filed the same after a lapse of time and as such, it is not barred by limitation . The refund claim filed by the appellant is in time - As both the authorities have not dealt with the merits of the claim of refund, in these circumstances, the impugned order is set aside and matter remanded to the adjudicating authority to entertain the claim on merits - appeal is allowed by way of remand.

Summary

Issues:
- Appeal against dismissal of refund claim as time-barred

Analysis:
The appellant, a 100% EOU, filed a refund claim under Rule 5 of CENVAT Credit Rules, 2004 for the period April 2012 to June 2012, seeking a refund of unutilized input service credit. The claim was initially filed before the Assistant Commissioner of Service Tax within the due date but was returned on 03/04/2013 for being filed before the wrong forum. The appellant then filed the claim before the Assistant Commissioner of Central Excise on 30/10/2013, which was rejected as time-barred. The appellant contended that the claim was not time-barred as it was initially filed in time and was returned erroneously. The appellant relied on a Tribunal decision and a High Court judgment to support their argument.

The Tribunal noted that the appellant had filed the refund claim within the time limit initially, and the Assistant Commissioner of Service Tax's failure to transfer the claim to the correct authority led to the delay. Citing a previous Tribunal decision and a High Court judgment, the Tribunal held that the appellant's claim should not be considered time-barred. The Tribunal emphasized that if the appellant were required to file a fresh claim, it would not be subject to the limitation period, as the time spent before the wrong forum should be excluded. Therefore, the Tribunal concluded that the refund claim was filed within the time limit.

Since neither the Assistant Commissioner of Service Tax nor the Assistant Commissioner of Central Excise had examined the merits of the refund claim, the Tribunal set aside the impugned order and remanded the matter to the adjudicating authority to consider the claim on its merits. Consequently, the appeal was allowed by way of remand, providing the appellant with the opportunity for a proper review of the refund claim.