[Order per : S.L. Peeran, Member (J)]. - This miscellaneous application is filed for early hearing of the appeal. The Applicants claim for refund of Rs. 41,87,884/- was rejected solely on the ground for time-bar.
2. The Appellants contends that the issue relates to refund and therefore the appeal could be taken up for out of turn to decide.
3. Heard both sides in the matter and perused the records. We notice that the issue lies in a very narrow compass and the appeal can be taken up for disposal and hence the miscellaneous application is allowed and the appeal is taken up for final hearing.
4. By the impugned order, the Commissioner (Appeals) rejected the refund claim solely on the ground that the Refund Application has been filed beyond the stipulated time limit for filing the claim under the Customs Act, 1962. The Appellants contends that they had filed the refund claim on 14-11-1995 which had been received in Appraising Refund section and the appellants issued with the stamped acknowledgement. There is no dispute by the original authority on the appellants having filed the refund claim in the appraising section on 14-11-1995. However, the stand taken by the original authority that the refund claim was received and not initialled as per date and time of the Assistant Commissioner on 21-11-1995 and that date is required to be taken and in terms of section 27 of the Customs Act for considering the time limit provided therein and taking that date the Commissioner is found the same to be time-bar and rejected the refund application. The ld. Counsel submits that there is no dispute about the refund claim having been received in appraising refund section the date stamp and their acknowledgement is clear and it is not disputed. The ld. Counsel submits that subsequently forwarded the same to the concerned Assistant Commissioner dealing with the refund is not consequently and his receipt of date cannot be taken as the date of filing of the refund claim. The ld. Counsel submits that a similar issue has come before the Tribunal has decided in appeal in the case of Patel Dahyabhai Joitaram & Co. v. CCE - (T) Refund filed in time with jurisdictional Inspector of Central Excise is to be considered as having been presented to the Assistant Commissioner if the claim is addressed to the Assistant Commissioner of Customs. The counsel's submissions in this case also the claim was addressed to the Assistant Commissioner, Appraising Refund/disposal, Processing Department, Chennai and therefore the ratio squarely applies in this case also. The ld. Counsel further relied on the case C.C.E. v. Jayshree Chemicals Ltd. - to wherein it was held that the refund claim have been filed before the Section Officer instead of filing it to the Assistant Commissioner was held to be proper and the Tribunal directed the case to be decided on merits. The ld. Counsel further relied on the final order No. 625/2000 dated 9-5-2000 wherein also the refund claim filed before the Appraising Refund section was held to be a proper filing and the issue being the same. He prays for the decision on merits.
4. Opposing the prayer by Sh. S. Kannan, ld. DR submits that the section 27 of the Customs Act is very clear as it lays down that the application of refund is required to be filed before the designated authority. He further contends that the findings given by the Assistant Commissioner (Refund) the refund claim was filed on 21-11-1995 is to be reckoned for the purpose of calculating the date and the Commissioner has already done so and arrived at the conclusion of the claim being time-bar. He further submits that the finding of the Assistant Commissioner on the refund claim is part and parcel of the impugned order. We notice that there is no dispute about the receipt of the refund claim addressed to the Assistant Commissioner of Customs on 14-11-1995 in the Appraising Refund Section of Customs House, Chennai. Authority has proceeded to determine the date on the basis of initial put on the application by the Assistant Commissioner of Customs. In our considered opinion the date of initial on the application by the Assistant Commissioner is not at all material. What is material for determining the date of filing the refund claim is the date on which claim has been lodged to the Assistant Commissioner of the Customs. The present application is addressed to the Collector of Customs, Appraising Section/Postal Appraising Department, Chennai and it has been filed in the appraising section on 14-11-1995. Therefore, the Tribunal decision in the case of Patel Dahyabhai Joitaram & Co. (supra) squarely applies to the instant case as the refund claim therein also was addressed to the Assistant Commissioner of the Customs which has been filed within the jurisdiction instead of Section Officer concerned was held to be proper in the law. The decision in the case of Talayar Tea Company v. C.C.E., (Ker.) wherein it is held that the provisions of Central Excise Act and that of under section 11B of the provision of section 27 of the Customs Act. Therefore the judgment rendered in the case of Dahyabhai Joitaram & Co. (supra) and Jayshree Chemicals Ltd. (supra) are squarely applies to the facts of the case. We are therefore of the considered opinion that the date has to be reckoned with the date of filing of the refund claim filed before the Appraising Refund Section on 14-11-1995 and this date is the Refund Application claim within the six months from the date of payment of duty and claimed is not time-bar. In that view of the matter, the impugned order is set aside and the matter is remanded to the original authority to decide the case on merits. Ordered accordingly.
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