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TMI Blog2019 (8) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... AT credit refund cannot be rejected on the ground that it is beyond one year from the relevant date - petition allowed. - W.P.Nos.22224, 22227, 22229, 22236, 22237 And 22240 of 2019 And W.M.P.Nos.21508, 21510, 21515, 21517, 21519 & 21523 of 2019 - - - Dated:- 29-7-2019 - Mr. Justice M. Sundar For the Petitioner : Ms.S.Gayathri For the Respondent : Mr.G.M.Syed Nurullah Sheriff Standing Counsel for Central Excise ORDER COMMON ORDER Ms.S.Gayathri, learned counsel on record for writ petitioner in all these six writ petitions, Mr.G.M.Syed Nurullah Sheriff, learned Standing Counsel for Central Excise, who accepts notice on behalf of the lone respondent in all these six writ petitions are before this Court. 2. With consent of learned counsel on both sides, main writ petitions are taken up, heard out and are being disposed of. 3. This Court is informed that these six writ petitions arise out of one common factual matrix, more importantly, this Court is informed, without any disputation or disagreement, that the central theme/core issue in all these si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit on Air Travel Agents service, Rent a cab service and Forex Exchange service is set aside with consequential relief of refund as provided under the relevant Rule. ii. disallowing Cenvat credit on Outdoor Catering Service and Business support Service (meal voucher) is upheld. iii. disallowing Cenvat credit on on the invoices addressed to Mumbai is upheld. iv. deduction of export turnover to the tune of ₹ 2,44,19,463/- as time barred is set aside with consequential relief of refund as provided under the relevant Rule. 25. Appeal is disposed of in the aforesaid terms. Order-in-Original No.255/2012: SANCTION ORDER I, therefore, sanction a refund of ₹ 6,44,728/- (Rupees Six Lakhs forty Four Thousands Seven Hundred and Twenty Eight only) to M/s.GIL Shared Service Pvt. Ltd Block II III, Ground Floor, No.184-187, Templesteps, Little Mount, Saidapet, Chennai -15, under Rule 5 of the Cenvat Credit Rules, 2004 read with notifications issued there under and read with Section 11B of the Central Excise Act, 1944 as made applicable to Service tax Law in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akhs Sixty Six Thousand and Forty Five only) to M/s.GIL Shared Service Pvt. Ltd Block II III, Ground Floor, No.184-187, Templesteps, Little Mount, Saidapet, Chennai -15, under Rule 5 of the Cenvat Credit Rules, 2004 read with notifications issued there under and read with Section 11B of the Central Excise Act, 1944 as made applicable to Service tax Law in terms of Section 83 of Finance Act, 1994. I reject an amount of ₹ 2,31,707/- for the reasons discussed above. I hereby direct the assessee to reverse the eligible and ineligible amount i.e., ₹ 8,97,752/- in their Cenvat account. Order-in-Appeal No.306/2015: 21. In view of the foregoing discussions, the Impugned Order i. disallowing canvat credit on Air Travel service, and Rent a cab service is set aside with consequential relief of refund as provided under the relevant Rule. ii. disallowing Cenvat credit on Outdoor Catering Service Sodexo Meal Voucher and Event Management Service is upheld. iii. disallowing Cenvat credit on the invoices addressed to Mumbai address is upheld. iv. disallowing Cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng canvat credit on Air Travel service, Rent a cab service and Banking charges is set aside with consequential relief of refund as provided under the relevant Rule. ii. disallowing Cenvat credit on Outdoor Catering Service (Sodexo Meal Voucher) is upheld. 22. Appeal is disposed of in the aforesaid terms.' 6. Learned counsel for writ petitioner submits that aforesaid orders in appeal have been given legal quietus and neither party has carried it in further appeal. In other words, the orders of first Appellate Authority have attained finality is her say. Learned counsel for writ petitioner, on instructions, submits that writ petitioner is claiming refund in accordance with the orders of first Appellate Authority and is not seeking a penny more. 7. Under such circumstances, respondent in the instant writ petition passed six orders rejecting the refund claim of the writ petitioner. Aggrieved by this six orders, rejecting the refund claim of the writ petitioner, instant writ petitions have been filed. 8. Adverting to the impugned order made by respondent, learned counsel for wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any Court, the date of such judgment, decree, order or direction.' ( underlining made by this Court to supply emphasis and to highlight) 13. Learned counsel for writ petitioner has submitted relevant particulars by way of a tabulation/table with regard to all six writ petitions and the same reads as follows: S. No. PERIOD OIO No. AMOUNT SANCTIONED BY ORDER -IN-ORIGINAL Rs. OIA NO AMOUNT SANCTIONED BY ORDER IN APPEAL TOTAL AMOUNT (Amount sanctioned vide order in original + Amount sanctioned vide order in Appeal) Rs. 1 Oct. 2010 to Dec.2010 20/2013 (R) Dated 02.05.2013 3,63,244 316/2015 Dated 27.11.2015 1,55,314 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the sake of clarity in the first of the six writ petitions. Though there is some difference in the dates in the other writ petitions, it does not make any difference to the principles that are being considered. Therefore, this Court is not embarking upon the exercise of setting out the dates in the other five writ petitions with specificity as they make no difference to the common principle emerges with clarity. 15. With regard to the first point that a second refund application is not necessary, the relevant paragraph is paragraph 6 in SPIC Ltd. case and the same reads as follows: '6. When there is no provision for filing a second refund application, the question of limitation does not arise. Further, the time limit under Section 27(1) of the Customs Act would be for the first application and the appeal is a continuation of the original proceedings and therefore there can be no limitation in respect of the proceedings pursuing the refund claim. Accordingly, both the questions of law are applications were rejected by the Original Authority on 09.03.2004 and 13.03.2004 stating that the said applications have been filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciation, it is necessary to extract the (substantial) questions of law as formulated by Hon'ble Division Bench and the same read as follows: '1. Whether the claim made by the first respondent for refund after an expiry of seven years in violation of the time limit fixed under Section 27(1) of the Customs Act, 1962 can be considered by the second respondent appellate Tribunal as a valid claim under the provisions of the Customs Act? 2. Whether the impugned order passed by the Customs, Excise and Service Tax Appellate Tribunal dated 10.11.2006 allowing the claim for refund of the first respondent after the expiry of seven years, contrary to the time limit fixed by the Section 27(1) of the Customs Act, 1962, is maintainable in law?' 21. In the light of all that have been set out supra, this Court is convinced that the impugned orders are liable to be set aside holding that the refund applications of the writ petitioner claiming CENVAT credit refund cannot be rejected on the ground that it is beyond one year from the relevant date. This Court has no hesitation in further holding that writ petitioner will be entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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