9911796707
TMI Blog2016 (5) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.9.2014 which was received in this case on 9.10.2014 is based on OIO. and has been filed beyond the stipulated period of one year from the date of issue of the OIO for final assessment, is in my opinion not correct. The consequential rejection of the appeal as time barred under Section 27 of the Customs Act, 1962 is also incorrect. The Hon'ble Madras High Court in the case of Sashun Pharmaceuticals Ltd. Vs Jt. Secretary, M.F. (D.R), New Delhi [2013 (8) TMI 200 - MADRAS HIGH COURT] has held that original filing of the claim is to be reckoned for the purpose of limitation. Therefore, the finding that claim of refund is time barred is contrary to the judgement of the Hon’ble Madras High Court and is therefore set aside. The matter is being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund was sanctioned subject to the production of proof that the same has not been charged to any revenue expenditure justifying the principle of doctrine of unjust enrichment. The counsel further submitted that the practice of suomoto refund which was in vogue earlier was stopped and as per the current provisions, they have to file refund claim under section 27, before proper officer enclosing all the documents in the format prescribed the refund regulation 1995. As per the order, appellant filed a refund application on 11/01/2013 along with CA certificate to prove that the refund does not attract unjust enrichment. The original triplicate copy of the BE and the original TR6 challan showing the duty payment particulars were already submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the portion of duty claimed as refund is maintained and shown in our accounts as receivables from Customs. When the duty claimed as refund is shown as receivable separately in their accounts, the question of including this in costing does not arise; that the department wrongly returned the refund application filed by them on 28-1-2013, asking them to produce certificate from the cost accountant. Besides, the department has also directed them to produce a certificate from the jurisdictional range officer of the factory, certifying the amount of CENVAT credit of the CV paid on the coal imported taken as credit; that as per the refund regulation 1995, the application should be submitted with necessary documents. The necessary documents a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t should be verified. When, they have filed CA certificate to rule out unjust enrichment showing separately in their books of accounts as 'receivables' from Customs, rejection of claim for want of irrelevant documents is unwarranted and uncalled for. The Certificate of non-availment of CENVAT credit from the Central Excise Authority was also sought for which was unwarranted in this case. 5. Heard both sides and perused the records. 6. The issue to be decided is as to what is the correct date for filing of the refund claim, whether the date should be taken as 11.1.2013 as contended by the appellant herein or 28.11.2013 which is the date of resubmission of the application by the appellant or whether 12.11.2014 as decided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my opinion not correct. The consequential rejection of the appeal as time barred under Section 27 of the Customs Act, 1962 is also incorrect. The Honble Madras High Court in the case of Sashun Pharmaceuticals Ltd. Vs Jt. Secretary, M.F. (D.R), New Delhi - 2013 (291) ELT 189 (Mad.) has held that original filing of the claim is to be reckoned for the purpose of limitation. The relevant para of the Hon'ble Madras High Court judgment is reproduced as under :- 12. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the records available, and in view of the decisions cited supra, it is noted that the petitioner had submitted the rebate claim on 5-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent is directed to grant the rebate to the petitioner, as per its application, dated 5-11-2007, along with the interest accrued thereon, as per law, if the petitioner is otherwise qualified for the same. The petition is ordered accordingly. No costs. 8. Under these circumstances, the finding that claim of refund is time barred is contrary to the judgement of the Hon ble Madras High Court and is therefore set aside. The matter is being remanded to the original authority to examine the aspect of unjust enrichment. The authority shall call for relevant documents that are required and the appellant herein is directed to co-operate with the department in furnishing of the requisite documents. It is also open for the appellant to contend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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