9911796707
TMI Blog2021 (11) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... arch, 2009, appellant's claims for refund of Rs. 16,43,339/- and claim for Rs. 8,21,432/- for the period from April, 2009 to September, 2009, which were rejected by the adjudicating authority and Commissioner (Appeals) are challenged in this Tribunal in appeal No. ST/89857/2018 and its rejection claim for Rs. 7,39,219/- for the period from October, 2009 to March, 2010 and April 2010 to September, 2010 that was rejected through Order-in-Original and Order-in-Appeal is assailed here though appeal No. ST/89890/2010. The grounds on which both the refund claims were rejected are summarised below. In appeal No. ST/89857/2018, the grounds of rejection were (i) Refund claim filed more than 3 months in a single claim application. (ii) Appellant di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore than once for any quarter in a calendar year and therefore refund claim is not admissible, as has been rightly held in the Order-in-Original and Order-in-Appeal. However, on a close reading of the said provision, it would clearly reveal that more than one claim application cannot be filed in a quarter but such claim is not restricted to be filed only for a quarter i.e. for 3 months in one application. Since, refund can be claimed within a period of one year and Notification No. 5/2006-C.E. (NT) dated 14.05.2006 has only provided additional benefit to the Export Oriented Units and units having more than 50% export turnover to file such refund claim in each calendar month, the use of word 'may' in the said notification has made it discret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted is situated, along with a copy of the invoices and a certificate from the bank certifying realisation of export proceeds. A bare reading of the said provision clearly indicates that registered premises is to be situated within the territorial jurisdiction of the Deputy/Assistant Commissioner before whom Form A application was to be filed. In the case of the applicant, as reveals from case record and admitted by both the parties, appellant got registered with retrospective effect from 11.08.2009 and the first refund application was filed on 30.08.2009 i.e. after the registration was completed. It is, therefore, immaterial to examine the date of invoices if raised before the registration date as there is no such stipulation or conditional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Appendix of Notification issued under Rule 9 for exporters. This being the facts on record and legal position, to my considered view, refund cannot be disallowed on the grounds set out in appeal No. ST/89857/2018 that arises out of Order-in-Appeal No. CD/TR(Appeals)/ME/41/2018- 19 dated 17.08.2018. 6. In respect of the other appeal No. ST/89890/2018 additional grounds of rejection as enumerated in the order is that services exported by the appellant was not used outside India and some of the input services like rent-a-cab and club or association services were not having any nexus to export and some invoices raised in the old address and some were time barred. Viewpoints of both the parties are noted in their written submissions in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithdrawal of registration of that premises is available on record, except that a new registration is taken by the appellant for another location. However, I would prefer to concur with the findings of the learned Commissioner (Appeals) that time barred refund claims cannot be entertained as admissible. Therefore, partially time barred refund claim for the period October, 2009 to March, 2010 which has been rejected by the Assistant Commissioner in his order dated 09.07.2012 and confirmed by the Commissioner (Appeals) needs no interference by this Tribunal. Hence the order. ORDER 7. Appeal No. ST/89857/2018 is allowed and the order passed by the learned Commissioner of CGST & Central Excise (Appeals), Thane Rural vide Order-in-Appeal No. CD ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
