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TMI Blog2024 (10) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... Pumps Private Ltd [ 2017 (7) TMI 24 - GUJARAT HIGH COURT] wherein Hon ble Court after considering the identical facts, where it was held that ' this is a case of issuing appropriate mandamus for calling upon the authorities to treat the payment of Rs. 5,10,573/- against Code No. 002 from the date on which, it was paid resulting into exempting the petitioners from any coercive liability of so called non-payment against Code No. 002. All the communications and order, which are impugned in the petition are hereby quashed and set aside.' Time limitation - HELD THAT:- There is no dispute that the appellant have initially filed the refund claim within one year from the relevant date, it is only after the department raised some discrepancies, the appellant have re-filled the refund second time. Therefore, in this fact the date of first time filing of the refund has to be considered as date of filing of refund application which is well within the time. Therefore, the refund is not time barred in the facts of the present case. It is settled that date of first time filing of refund shall be taken as date of filing of refund even though the refund application was returned and subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the appellant s refund claim is not time bar. This issue has come up in various judgments before this Tribunal. He placed reliance on the following judgments:- Nokia India Sales Pvt. Ltd Vs CC 2019 (368) ELT 975 (Tri.-Ahmd.) CCE Vs Bhandiguri Tea Estate 2001 (134) ELT 116 (Tri.-Kolkata) Devang Paper Mills Pvt. Ltd Vs Union of India 2016 (41) STR 418 (Guj.) Auro Pumps Pvt. Ltd Vs Union of India 2017 (353) ELT 7 (Guj.) He submits that in view of the above judgments, it is settled that the date of first time filing of refund should be within one year from the relevant date which is not in dispute in the present case. Hence, the refund is not time barred. 3. Shri Rajesh R Kurup, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned orders. He also placed reliance on the following judgments:- Cummins Technologies I P Ltd Vs. Union of India-2023 (386) ELT 494 (Bom) MRF Ltd Vs. CCE, Chennai-2002 (149) ELT 801 (Tri-Chennai) E V Mathai Co CCE, Cochin -2006 (3) STR 116 (Tri-Bang) Lorenzo Bestonso Vs. CC, JNCH - 2017 (347) ELT 104 (Tri-Mum) Ahmedabad-I Vs. Medico Labs-2004 (173) ELT 117 (Guj) - CCE, CST Vs. Associated Hotels Ltd-2015 (37) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner as well as notice dated 21-7-2015 as at Annexure-M to the petition. 2. Brief facts are as under : - 2.1 The petitioner is a private limited company and is engaged in the manufacture of excisable goods for which the petitioner enjoys central excise registration. Petitioner has been allotted Code No. AADCD7232REM002. It is under this code that the petitioner regularly files its returns. In the month of August, 2014, the petitioner has incurred duty liability of Rs. 22,15,000/-, which liability the petitioner discharged in cash through personal ledger account. While paying such duty, the challan under which the amount is deposited in the bank, the petitioner, due to oversight, mentioned the assessee Code No. AADCD7232REM001 instead of Code No. AADCD7232REM002. The petitioner immediately thereupon pointed out this issue to the Audit Officer under letter dated 19-3-2015 in detail explaining the background leading to such mistake. On 5-5-2015, the Department wrote to the petitioner that the assessee code now cannot be changed and only remedy available to the petitioner would be to seek refund. It was conveyed to the petitioner that the duty paid in the wrong assessee co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also made. Under the circumstances, the impugned communication dated 5-5-2015 and notice dated 21-7-2015 are quashed. The respondents are directed to give credit of the duty paid by the petitioner for a sum of Rs. 22.15 lacs by making necessary accounting entries on the basis that the same was paid at the relevant time. If thereafter any sum remains unpaid, it would be open for the Department to take further action in accordance with law. 6. The petition is disposed of in the above terms. In view of the above judgments of the jurisdictional High Court if the duty was paid my mistake the same is refundable. 4.2 As regard the time bar issue, we find that there is no dispute that the appellant have initially filed the refund claim within one year from the relevant date, it is only after the department raised some discrepancies, the appellant have re-filled the refund second time. Therefore, in this fact the date of first time filing of the refund has to be considered as date of filing of refund application which is well within the time. Therefore, the refund is not time barred in the facts of the present case. The same issue has been considered by this Tribunal in the case of Nok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACC v. CCE, Jamshedpur - 2001 (130) E.L.T. 277 (Tri.-Kol.) 3. Sh. S.K. Shukla, Ld. AR appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the appellant since not submitted any document regarding unjust enrichment which is recorded in both the orders, they have only submitted Chartered Accountant Certificate, therefore, their claim was rightly rejected being time barred and on the ground of unjust enrichment. 4. I have carefully considered the submission made both the sides and perused the records. I find that as regard the time bar the refund will not arise as from the date of Hon ble Supreme Court judgment in the case of SRF Industries, the appellant was not the litigant, however the law applies to the appellant case also subject to refund is filed within one year from the relevant date. In the present case, the relevant date will be a date of payment of duty and not from the date of order of Hon ble Supreme Court in the case of SRF Industries. However, the appellant initially filed the refund claim which was returned and then they resubmitted subsequently. In this case the initial filing of refund claim shall be considered as date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en given on the file and directions have been given to the Asstt. Commissioner to file an appeal no authorization has been shown to us. As such in view of the foregoing we do not find any merits in the Revenue s appeal and reject the same. In view of the above judgments, it is settled that date of first time filing of refund shall be taken as date of filing of refund even though the refund application was returned and subsequently the same is re-filled at a later date. Accordingly, in the identical facts in the present case applying the ratio of above judgments, the refund is not time barred. 4.4 As regard the judgment cited by learned AR, on going through the same, we find that the facts and issue involved in those cases are different from that of the present case, therefore, those judgments are not applicable. 5. As regard the appeal No. E/12767/2018 the Appellant have filed the appeal against the order in appeal passed by Ld. Commissioner (Appeals) remanding the matter. The Appellants have challenged the said Order in Appeal on the grounds that the Ld. Commissioner (Appeals) has no power to remand and also on the merits of the matter. As regards the issue on Ld. Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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