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TMI Blog2021 (3) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... in-Original dated 29/04/2019 on time-bar and the same was upheld by the Commissioner (Appeals) by the impugned order. The Commissioner (Appeals) has wrongly invoked the provision of Clause (ec) for denying the refund on the ground that the refund has arisen on account of the order passed by the Commissioner in appeal whereas in fact the refund has arisen on account of export of goods and the Department having accepted the order of the Commissioner (Appeals) dated 27/07/2015 should have refunded the amount in cash to the appellant. This issue has been considered by the Tribunal in the case of SPIC LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI [ 2006 (11) TMI 73 - CESTAT, CHENNAI] wherein on identical facts, the Chennai Bench of the CESTAT has held that there is no need to file any refund application under the provisions of the Act. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 to 2018 verbally requested the Range Division office to release the balance refund and thereafter vide letter dated 14/01/2019, appellant requested the Assistant Commissioner to release the balance amount of ₹ 16,04,530/- (Rupees Sixteen Lakhs Four Thousand Five Hundred and Thirty only) withheld from the rebate claim in view of the Order-in-Appeal dated 27/07/2015. Thereafter on 02/04/2019, a show-cause notice was issued to the appellant proposing to reject the refund on the ground of time-bar. After following the due process, vide Order-in-Original dated 29/04/2019, the original authority rejected the claim on time-bar and the appeal filed before the Commissioner (Appeals) was rejected. Hence, the present appeal. 2. Heard both the parties and perused the records. 3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law and the binding judicial precedents. She further submitted that the impugned order is totally misconceived by wrongly considering their reminder/request letter dated 14/01/2019 to release the refund amount, as the relevant date to dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the Commissioner (Appeals). The Department by withholding the amount unjustly cannot enrich itself on frivolous grounds that the appellant claimed refund belatedly. She further submitted that the provision of Section 11B does not envisage the assessee to file fresh refund application following a successful appeal/revision proceeding. Subsequent to reminder letter dated 14/01/2019 filed by the appellant has no relevance to determine the time limit under Section 11B of the Central Excise Act, 1944. For this submission, she has relied upon the following decisions: * SPIC Ltd. Vs. CCE, Chennai - 2007 (209) E.L.T. 91 (Tri.-Chennai) further affirmed by Hon'ble High Court of Madras - 2015 (318) E.L.T. A178 * VVF Ltd. Vs. CCE & ST, Daman - 2018-TIOL-509-CESTAT-AHM * GIL Shared Services Pvt. Ltd. Vs. Asst. Commr. of GST & CE, Chennai - 2019 (29) G.S.T.L. 693 (Mad.) * CCE, Pune-III Vs. Movilex Irrigation Ltd. - 2007 (207) E.L.T. 617 (Tri.-Mum.) 4. On the other hand the learned AR reiterated the findings of the impugned order. 5. After considering the submissions of both the parties and perusal of the material on record, I find that the appellant filed the refund clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r favour on the claims already filed by them had been rendered by the Appellate Commissioner. Their claims had remained unsettled at the time when the Constitution Bench of the Hon'ble Supreme Court had examined the question of unjust enrichment and refund under Section 11B of the Central Excise Act/Section 27 of the Customs Act in the Mafatlal Industries Ltd. case (supra). 10. In Para 100 of the Mafatlal Industries Ltd. judgment, the Supreme Court had directed that in respect of claims which had been pending in suits/writ appeals, the concerned petitioners should file refund claims within 60 days of pronouncement of the judgment in that case. In the instant case, the appellants had received favourable orders vide Orders-in-Appeal dated 14-6-93 and 30-10-96. Subject claims had not been pending in any proceeding before any court at the time when the Hon'ble Supreme Court pronounced the judgment. What the Hon'ble Supreme Court ordered in Para 100 extracted above is in respect of claims involved in pending Writ petitions/Writ appeals/suits. Therefore, it cannot be said that the subject claims are governed by the directions of the Apex Court referred to above. In the Kerala State Ele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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