Date of Cenvat Credit Refund Claim is to be taken as Date on which Original Refund Claim was Acknowledged by Excise Dept: CESTAT [Read Order]

In a recent case, the Chennai bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that the date of the cenvat credit refund claim under Cenvat Credit Rules (CCR), 2016 is to be taken as the date on which the original refund claim was acknowledged as received by the Excise Department.

Vishay Transducers Pvt Ltd,  the appellant is a manufacturer of load cells falling under Chapter heading 90300000 of the Central Excise Tariff Act, 1985. They had filed a refund claim for Rs 76,61,153/on 19.11.2012 under Rule 5 of Cenvat Credit Rules, 2004 ("CCR,2004") pertaining to unutilized cenvat credit accumulated on inputs and input services used in the export of final products for the quarter ending December, 2011 which was submitted along with enclosures on 23.11.2012 with the Assistant/Deputy Commissioner of Central Excise, Perungudi Division and was duly acknowledged under dated seal and signature. 

The said claim received on 23.11.2012 was returned by the then Assistant Commissioner on 26.11.2012, on the grounds of non-submission of some relevant documents for processing the refund claim. The appellant then refiled their claim vide letter dated 07.08.2013 referring therein to the returning of the refund claim on grounds of non-submission of documents and stating that their re-submission is pursuant to the advice to file the refund claim afresh. The letter has been acknowledged under dated seal and signature on 10.12.2014.

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The Department being of the view that the said claim was filed belatedly beyond one year as stipulated under law, issued a show cause notice (SCN in short) to the appellant for the rejection of the same as time barred.  After due process of law, the Respondent rejected the refund claim as time barred under Rue 5 of CCR,2004 and Notification No. 5/2006 CE (NT) dated 14.03.2006 as amended read with Section 11B of the Central Excise Act, 1944. Aggrieved by the impugned order in original, the appellant preferred an appeal before the Commissioner (Appeals-II), Chennai, who upheld the impugned order in original. Aggrieved by the order of the appellate authority, the appellant is before this Tribunal. 

The Advocate Shri. J.V. Niranjan appeared and argued for the appellant.   It was argued  that the refund claim was filed in person and the fact of receipt of their refund claim with enclosures as per the covering letter dated 19.11.2012 was accepted by the officer of the Division duly acknowledged clearly establishes the fact that the refund claim of the appellant did enclose all the documents that are listed in the covering letter together with the refund claim.

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Further submitted that the ground for rejecting the claim being non submission of chartered accountant’s certificate for receipt and consumption of inputs and copies of invoices for clearance of goods for home consumption in terms of the requirements of Notification No.5/2006-CE (NT) dated 04-03-2006 as amended itself is untenable as the said notification was superseded by Notification No.27/2012-CE (NT) dated 18.06.2012 and the appellant’s refund claim dated 19.11.2012 ought not to have been rejected by applying the conditions of erstwhile notification No.5/2006-CE(NT).

That in any event, when the refund claim was filed, in case of any deficiency instead of calling upon the appellant to remove the same, returning the claim vide letter dated 26.11.20123 itself was not permissible and the delay in resubmission was consequent to misplacing of the documents submitted by the appellants in the Division office leading to the appellant having to refile the refund claim by tracing such documents again for the said purpose.  He prayed that the denial of refund is not legal and not proper and therefore the impugned order in appeal may be set aside and the appeal allowed with consequential relief.

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On paragraph 2.4 of Chapter IX of the Central Excise Manual supplementary instructions which in fact states inter-alia that submission of refund claim without supporting documents will not be allowed.  Indisputably it is an admitted fact that the original refund claim filed was returned to the appellant. When the prevailing instructions itself according to the Appellate authority requires that submission of refund claims without supporting documents is not to be allowed, the factum of its return presupposes its filing with supporting documents, albeit later found to be of incomplete nature. T

In Abhedya Industries Ltd v CCE &ST, Hyderabad-III, reported in 2016,it was held the law to be settled that that the date of initial submission of the refund claim shall be the actual date of submission for the purpose of limitation under Section 11B of Central Excise Act, 1944 and not the date of resubmission.

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The Tribunal followed the Gujarat High Court decision in United Phosphorous v UOI and has held that when the refund sanctioning authority who received the original refund claims has not rejected these refund claims on merits and has merely returned the same, further filing of the refund claims ought to be considered only as resubmission and not as fresh claims.

While allowing the appeal, the two-member bench of M. Ajit Kumar, Member (Technical) and Ajayan T.V. Member (Judicial) held that the refund claim filed by the Appellant is to be taken as filed on 23.11.2012, the date on which the original refund claim was acknowledged as received by the Department. Hence the impugned orders of both the lower authorities are set aside and the matter is remitted back to the jurisdictional adjudicating authority to process the refund claim on merits.

To Read the full text of the Order CLICK HERE

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