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TMI Blog2018 (2) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. 3.Mrs.Aparna Nandakumar, learned Senior Standing Counsel for the Revenue raised a preliminary objection with regard to the maintainability of the petition, contending that the impugned proceedings being a show cause notice, the petitioner should be directed to submit a reply to the notice and participate in the adjudication process. At the first blush, the contention advanced by the learned Senior Standing Counsel appears to be an acceptable proposition, but, on a closure scrutiny of the factual position of the instant case, has convinced me to entertain the writ petition as the petitioner's claim for refund is sought to be denied, on the ground that it is barred by limitation. 4.Therefore, what is required to be seen as to wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reason being that one of the premises in which the petitioner was carrying on business was not registered with the Department. The petitioner preferred appeals against the said order and the appellate authority by order dated 31.12.2015 allowed the petitioner's appeal and set aside the order rejecting the part of the refund claim on the ground of the non-registration of the premises; upholding the findings with regard to the disallowance of CENVAT Credit in respect of the air travel Agent service and car parking charges and set aside the order, rejecting part of their refund claim on the ground of limitation. 6.The revenue preferred appeal in respect of one of the orders passed by the Commissioner of Appeals in CMA No.3493 of 2017 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calculating the period of one year. 9.Therefore, it is submitted that the application dated 27.04.2017 is proposed to be rejected on the ground it is time barred and it is the duty of the petitioner to respond to the show cause notice. The respondent miserably failed to take note of the fact that the claim for refund is not as a result of a judgment or order or direction of a Court or order of a Tribunal or an authority but it is on account of a notification issued by the Central Board being notification No.27/2012 CE(NT) dated 18.06.2012. This notification deals with refund of CENVAT credit under Rule 5 of the CCR, 2004 and it is not only prescribes the safeguards, conditions and limitations, it also prescribes the procedure for filing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise before the expiry of six months 1 from the relevant date 4 in such form as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person: (B)" relevant date" means,- (a)in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods,- (i)if the goods are expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph Prabakar, learned counsel for the petitioner, the revenue did not filed any appeal as against the findings rendered by the respondent in his order dated 30.10.2015 holding part of the applications to be within time. Before the Appellate Authority the petitioner's succeeded that the remaining applications are also within time. The order was confirmed by the Tribunal. Further, appeal to the Division Bench was only on merits of the matter, which was rejected. Therefore, at this point of time, the stand taken by the respondent proposing to reject the petitioner's application for refund is wholly without jurisdiction and erroneous. 15.The learned Senior Standing Counsel appearing for the revenue placed reliance on the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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