The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Chennai Bench rejected claim for refund and held that sleeping over rights for nearly ten years, cannot take shelter under law.
The only issue, therefore, that is to be considered is: whether the rejection of refund of CVD claimed by the taxpayer is correct or not? The Appeal has been filed by M/s. Sree Rajendra Textiles, the appellant against the order of the Commissioner of Customs (Appeals-II), Chennai, whereby the rejection of refund of CVD, as made by the Assistant Commissioner came to be upheld.
The Representative for the Revenue, AnandalakshmiGaneshram supported the findings of the lower authorities and also submitted that the refund claim of the appellant, who is only a trader and not a manufacturer, was rejected since the Bills-of-Entry stood assessed finally and that there was no protest expressed by the appellant.
The Advocate for the appellant, M.A. Mudimannansubmitted that both the lower authorities have rejected the claim of the appellant on limitation per se, without going into the merits of the appellant’s claim and hence, both the orders of the lower authorities are non-speaking orders, for which reason the Counsel requested for remand of the case back to the file of the Adjudicating Authority for de novo adjudication.
A Single Bench consisting of P Dinesha, Judicial Member observed that “It was nearly after ten years that the judgement of the Hon’ble Apex Court in M/s. Enterprises International Ltd. was passed, which the appellant is trying to take advantage of by claiming that its application for refund is within one year from the date of the above judgement. This is clearly an afterthought, which cannot be accepted, since the scope of Section 27 ibid. is limited to the claimant who pursues by means of litigation before higher authorities and hence, any third person cannot derive any benefit out of the same.”
“The appellant having slept over its right for nearly ten years, cannot take shelter as it has taken, which is not permitted under law. I am of the considered opinion, therefore, that the period of limitation would not start from the date of the judgement of the Hon’ble Apex Court in the case of in M/s. Enterprises International Ltd. as claimed by the appellant, but from the date of finalization of the Bills-of-Entry / adjudication, as held by the lower authorities.”
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