9911796707
TMI Blog2008 (9) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... ty as provided under Section 11B of the CEA, 1944 and the refund claims had become time barred – held that re-submission of the refund claim should be considered from the date of filing of original claim – refund is allowed X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby allowing the appeal by way of remand". 3. The ld. Commissioner (Appeals) has taken up and passed the impugned order on remand proceedings. The ld. Commissioner (Appeals) has held as under :- "I have carefully examined the facts of the case as well as the CESTAT's order and the submissions made by the assessee. I see that the Commissioner (Appeals) had accepted the departmental appeal and set aside the Order-in-Original. As a consequence of this setting aside of the Order-in-Original be came alive again. As such the department went in appeal to CESTAT so as to get a clear Speaking Order and that is how the case has come before me to reconsider the issue afresh and pass a clear and complete order. I have examined the facts of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments as considered by them to be answering the issue of unjust enrichment if, instead of simply rejecting the claim of February 2002, the department would have issued the party a show cause notice as to why the claim should not be rejected in absence of documents relating to satisfying the conditions of unjust enrichment, this show cause notice would have been decided latest by April 2002. The party has taken too long a period to re their claim and then too even stated that the claims submitted in totality on 27-03-2003 should be considered to submitted on 29-11-2001. On these grounds I set aside the Deputy Commissioner's Order as far as sanctioning 8 refund claims relating to Rs. 6,45,239/- are concerned. In addition to the above, I am a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Spinning Mills Ltd. TFO Unit v. CCE, Coimbatore [2007 (219) E.L.T. 958 (T) = 2007-TIOL-830-CESTAT-MAD] for the submission that the re-submission of the refund claim should be considered from the date of filing of claim. It is his submission that the order of the adjudicating authority is correct and they should be granted the refund. 5. The ld. J.D.R. on the other would submit that the appellant took almost 13 months to re-submit the refund claim with proper documentary evidence. It is the submission that any refund claim that is filed without any proper documents is incorrect refund claim and hence the question of time bar will arise when the said refund claim are re-submitted. He submits that the ld. Commissioner (Appeals) was correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejection is only on the ground that the appellant has taken too long a period to re-submit the claims. I find that the said order is not correct and untenable on the face of the order of the Hon'ble High Court of Delhi in the case of Arya Exports and Industries (supra). Their Lordships in that case held as under:- "The above approach of the Appellate Tribunal is in consonance with the settled principles of law and we see no reason to interfere, even if for the sake of argument it is assumed that we should have condoned the delay in filing the present appeal. The assessee had admittedly submitted the application within the prescribed time and if it surfers from any procedural irregularity the Department was under an obligation to require the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
