9911796707
TMI Blog2018 (9) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... at all. Matter remanded back to the original authority to decide the claims of refund of the appellant within a period of three months from the date of receipt of certified copy of this order - appeal allowed by way of remand. - ST/21277/2018-SM, ST/21278/2018-SM, ST/21281/2018-SM, ST/21282/2018-SM, ST/21283/2018-SM, ST/21284/2018-SM - 21359-21364/2018 - Dated:- 17-9-2018 - Mr. S.S Garg, Judicial Member For the Appellant : Shri Harish Bindumadhavan, Advocate and Ms. Disha Gursahaney, Advocate For the Respondent : Shri Kanipakam Murali, Superintendent(AR) ORDER PER : S.S GARG The appellants have filed these six appeals arising out of the common impugned order dt. 11/05/2018 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has dismissed the appeals of the appellant claiming refund and upheld the Orders-in-Original. Since all the appeals disposed of by the common impugned order and issue is identical in all the appeals, present six appeals are being disposed of by this common order. The details of refund claims are given hear in below :- Period Refund rejected October 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade and also not provided opportunity of hearing thereby violating the principles of natural justice; b. The order has not specified any cogent reason for rejection; c. The adjudicating authority has not exercised the power vested with him to condone the delay; d. The impugned order does not stand the test of legality that the SEZ Act 2005 overrides all other Acts and other legal provisions; e. Appellant has a justifiable reason explaining the delay in filing the refund claims. 4.2. Learned counsel further submitted that the refund claims filed by the appellant, being a SEZ Unit, shall be regulated by Notification No.12/2013-ST whereas the impugned order has wrongly considered the refund claims under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No.5/2006-CE(NT) dt. 14/03/2006 or Notification No.27/2012- CE(NT) dt. 18/06/2012. He further submitted that the impugned order is totally a non-speaking order and has been passed without considering the facts of the case and is also in violation of the Circular issued by the CBEC vide Master Circular No.1053/02/2017-CX dt. 10/03/2017 which mandates the Department to pass order which can stand legal scrutiny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould give proper reasons. 4.5. Further in the case of Uma Nath Pandey Vs. State of UP [2009- TIOL-65-SC-MISC], the apex court has decided that natural justice is the essence of fair adjudication and the adherence to principles of natural justice is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. Further the purpose of following the principles of natural justice is the prevention of miscarriage of justice . 4.6. It is his further submission that the adjudication order has not considered the justified reasons given by the appellant for delay in filing the refund claims and also has not recorded any findings on the same. He further submitted that Notification No.12/2013 categorically provides the power to the Refund authority to condone the delay and such power must be legitimately used and unless there is an element of unreasonableness or perversity for the explanation for such day, such delay should be liberally condoned. The learned counsel further made his submission that it has been held in various judicial precedents by the Hon ble Tribunal that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate that the matter is remanded to original adjudicating authority to verify the correctness of the amounts claimed, proof of payment and sanction of refund. It is made clear that the delay in filing the refund claim is condoned . Again in the case of Synefra Engineering and Construction Ltd. (supra), this Tribunal held as follows:- 7. It can be seen from the above that the said provision specifically directs the Assistant Commissioner or the Deputy Commissioner, to consider the application for refund of claim if the said refund claim is filed within a period of six months and if a request is made for condoning the delay. I find from the said provision that the lower authorities are required to consider the refund claim even if it is filed beyond the period of six months from the date of payment of service tax to the service provider. I find that this Bench in the case of WOCO Motherson Advanced Rubber Tech. Ltd. (supra) had specifically dealt with the same provision, in an identical situation, and held as under:- 5. Coming to the limitation, taking note of the fact that the notification itself was issued in March 2009, a liberal approach for condonation of del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er rank officer. Further I find that the original authority as well as the Commissioner(Appeals) both have not considered the reasons for the delay in filing the claims and has not given any finding on the same. Whereas the Notification No.12/2013 dt. 01/07/2013 has specifically given the power to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise to condone the delay after being satisfied with the reasons given by the assessee. Further I find that the Tribunal in various decisions cited supra has observed that the prayer for extension of time to claim refunds should be granted in a liberal manner. 8. In view of the various decisions cited supra, I am of the view that the impugned order is not sustainable in law as the same has been passed without appreciating the facts and the law and without affording the opportunity of hearing to the appellant. Therefore I set aside the impugned order and remand the case back to the original authority to decide the claims of refund of the appellant within a period of three months from the date of receipt of certified copy of this order. Further the original authority shall consider various decisions pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
