Decision on Application for condonation of delay for refund claim, by CESTAT West Zonal Bench, Ahmedabad dated 21.01.2013

M/s. Intas Pharma Limited  (Appellant (s))

Vs

Commissioner of Service Tax Ahmedabad (Respondent(s))

Facts :

1. The appellant is holding Service Tax registration and also registered with the office of Kandla Special Economic Zone (KASEZ for short).  Appellant filed a refund claim on 21.09.2010 for Rs. 47,858/- in terms of the Notification No. 15/2009 dated 20.5.2009.  On scrutiny of the said refund claim, it was observed that the actual payment was made for services from 08.9.2009 to 20.3.2010 and the claim of refund should be filed within six months from the date of actual payment of service tax by such developer or unit to the service provider.

2. Accordingly, the adjudicating authority concluded that major part of the refund is not eligible to the appellant, i.e. after six months.  Adjudicating authority, out of the total claim of Rs. 47,858/- sanctioned the refund amount of Rs. 249/- and rejected the balance amount of Rs. 47,609/- in terms of Notification No. 09/2009-ST dated 03.3.2009 as amended to read with Section 11B of the Central Excise Act, 1944 as made applicable to the service tax matters vide Section 83 of the Finance Act, 1994. Aggrieved by such order in original, appellant preferred an appeal before the first appellate authority.  First appellate authority also relied upon the findings of the adjudicating authority and rejected the appeal filed.

3. The appellant had submitted along with reply to the show cause notice, which was filed on 01.11.2010, an application for condonation of delay, giving reasons for delay in filing the refund claim before the adjudicating authority.  However  the lower authorities have not considered this application for condonation of delay in proper perspective ( as mentioned in Clause 2(f) of the Notification 9/2009-ST dated 03.3.2009, as amended from time to time, to submit that the said Clause specifically talks about condonation of delay by the jurisdictional Assistant Commissioner or Deputy Commissioner of the Central Excise.)

Judgement:

4. On perusal of the record, it was found that the adjudicating authority as well as the first appellate authority has not considered the representation made by the appellant along with the reply to the show cause notice.  The said letter specifically states that due to the distance between their head office and the factory premises, this information was not captured in the general accounts of the appellant.  In my view, this letter should have been considered by the lower authorities in its proper perspective and a view should have been taken.  Adjudicating authority as well as the first appellate authority has not referred to this letter which was filed by the appellant along with the reply to the show cause notice.  Therefore, both the lower authorities should be given a chance to reconsider the issue in the light of such a letter which is on record along with the reply to the show cause notice. The judgment in the case of APK Identification vs. CCE Noida - 2012 (27) STR 20 (Tri. Del.) where in such a view is taken.

5.In view of the forgoing, without expressing any opinion on the merits of the case, the impugned order is set-aside  and remit the matter back to the adjudicating authority to reconsider the issue afresh in the light of the allegations made in the show cause notice, replies made by the appellant and also to consider the application for condonation of delay in filing the refund claim, which is submitted along with the reply to the show cause notice.  Needless to state that adjudicating authority shall follow the principles of natural justice before coming to any conclusion.