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TMI Blog2013 (10) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... te claim within stipulated 60 days. Hence, the applicant cannot be faulted for subsequent late submission of application after getting the clarification regarding proper authority on pursuance of department only. - Decided in favour of assessee. - F.No. 371/15/DBK/2013-RA - 237/2013-Cus - Dated:- 22-10-2013 - Shri D.P. Singh, Joint Secretary Shri Jagannathachari, DGM (Finance), H.G. Dharmadhikari and D.A. Bhalerao, Advocates, for the Appellant. None, for the Respondent. ORDER This revision application is filed by M/s. Famy Care Ltd., GIDC, Sarigam, Gujarat, against the Order-in-Appeal No. SRP/53/VAPI/2012-13, dated 5-10-2012, passed by the Commissioner of Central Excise, Customs Service Tax (Appeals), Vapi with respect to Order-in-Original No. 01/DBK/Tech/Vapi/2011 passed by the Assistant Commissioner of Central Excise, Customs Service Tax, Division-Vapi. 2. The brief facts of the case are that the applicant filed applications for fixation of Brand Rate, under Rules 6 7 of the Customs, Central Excise Service Tax Drawback Rules, 1995 on the Service Tax paid on input services as defined in Clause 2(d) of Drawback Rules, 1995. They filed the applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Being aggrieved by the said Order-in-Original, department filed appeal before Commissioner (Appeals) who set aside the Order-in-Original and allowed department s appeal. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under Section 129DD of the Customs Act, 1962 before Central Government on the following grounds : 4.1 It is settled preposition of law that the benefits which are due to exporters are not to be denied on account of latches and lapses on the part of department. In case of applicant, applicant has rightly approached the Jurisdictional Commissioner with a request to fixation of brand rate on input service of Business Auxiliary service provided by foreign service provider and accordingly submitted subsequent applications within sixty days from the date of Let Export Order of the final product. Therefore, there is no delay in filing the application of fixation of brand rate. These applications are received by the Commissioner of Central Excise on 13-6-2006 and respective dates as per their acknowledgement on the letters. On receipt of these applications, the Office of Commissioner of Central Excise informed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned Show Cause Notice has wrongly referred the dates on which the applicant has resubmitted the original applications on monthly basis after having got confirmation that the jurisdictional Commissioner is the only authority to deal with it. 4.3 The order of lower appellate authority of not considering the ground of non-maintainability of appeal on account of delay in filing the appeal in terms of Section 35E(4) of Central Excise Act, 1944 is ex facie unsustainable. In case of applicant, while submitting legal ground that appeal filed by department is unsustainable on the ground of delay, the reference and attention of lower appellate authority was drawn to sub-section (4) of Section 35E during the year 2011-12 when the appeal was preferred which inter alia contemplates that after receiving the review order passed under sub-section (1) or sub-section (2) of Section 35E, the officer should prefer an appeal within one month from the date of communication of the review order. In case of applicant, as per the appeal memo in form of EA-2 against Col. No. 4 which deals with date of order passed under Section 35E, sub-section (1), is 16-8-2011 whereas the appeal is filed on 26-9-2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed time limit of 60 days and extended period of 30 days in terms of Board s Circular No. 14/2003-Cus., dated 6-3-2003. Commissioner (Appeals) upheld impugned Order-in-Original. Now the applicant has filed this revision application on grounds mentioned in Para 4 above. 8. Government observes that the Para 3(d)(viii) of CBEC s Circular No. 14/2003-Cus., dated 6-3-2003 reads as under : (d) Fixation and approval of Brand Rate : (i) . (ii) . (iii) . (iv) . (v) . (vi) . (vii) . (viii) Time-Limit for filing Brand Rate application : As per the provisions of Rules 6 and 7 of the Customs Central Excise Duties Drawback Rules, 1995 (as amended), the Brand Rate applications are required to be filed maximum within a period of 60 days from the Let Export Date of the first Shipping Bill. Delay up to 30 days; i.e; up to 90 days from the Let Export Date may be generally condoned on receipt of the exporter s application in this regard. In case the Brand Rate application is for a number of Shipping Bills or a period of time, Brand Rate may be fixed excluding only the Shipping Bill/period which stands time-barred. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated acknowledgement of Central Excise under official stamp on the forwarding letters of each application as is evident from photocopies of such letters. 8.4 Government observes that the applicant initially filed claim within stipulated time limit and there is no dispute about it. Government finds that after issuance of clarification by Development Commissioner, SEZ the applicant resubmitted brand rate of drawback fixation applications of impugned case, to which the department raised the issue of time-bar. There are catena of judgments wherein it has been held that time-limit to be computed from the date on which refund/rebate claim was originally filed. High Court and CESTA Tribunal, have held in following cases that original refund/rebate claim filed within prescribed time-limit laid down in Section 11B of Central Excise Act, 1944 and the claim resubmitted along with some required documents/prescribed format on direction of department after the said time limit cannot be held time-barred as the time limit should be computed from the date on which rebate claim was initially filed. (i) CCE, Delhi-I v. Aryan Export Ind. - 2005 (192) E.L.T. 89 (DEL.) (ii) A Tosh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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