TaxTMI 
TaxTMI 
2018 (9) TMI 1280
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....arch 2014 Rs.2,60,256 April 2014 to June 2014 Rs.4,65,101 July 2014 to September 2014 Rs.3,04,351 October 2014 to December 2014 Rs.11,88,700 January 2015 to March 2015 Rs.6,68,738 2. Briefly the facts of the present case are that the appellant is a unit registered under SEZ scheme and is engaged in the business of provision of Information Technology Software Services. They have entered into an agreement with their overseas firm vide which they have agreed to provide various services relating to information technology and Research & Development service which are in the nature of export of service and for providing these services the appellant have availed various input services. The appellant in terms of provisions contained in notification No.12/2013- ST dt. 01/07/2013 filed refund claims for various periods cited in the table. Thereafter show-cause notices were issued to the appellant for nonsubmission of some of the documents as well as for filing the refund claims as time barred under the provisions of Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. After following the due process, the original authority....
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.... STR 97 (SC)] wherein the Supreme Court has held as under:- 7(a). It should always be kept in mind that nothing should be written in the judgment/order, which may not be germane to the facts of the case; it should have a corelation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment / order." 4.3. The learned counsel also submitted that it is a settled position of law that the circular issued by the CBEC is binding on the Department. In this regard, he relied upon the following case laws:- i. CCE, Vadodara Vs. Dhiren Chemical Industries [2002(139) ELT 3 (SC)] ii. Union of India Vs. Arviva Industries (I) Ltd. [2007(209) ELT 5(SC)] 4.4. He further submitted that the impugned order is also in violation of principles of natural justice as the appellant has not been afforded any opportunity of hearing and the Commissioner(Appeals) has passed ex parte order and that too on the basis of wrong facts and law. In support of this submission, he relied upon the decision in the case of Excel India Pvt. Ltd. Vs. CST, Bangalore [2007(7) STR 542 (Tri. Bang.)] wherein the Tribunal has observed as under:- "....
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....e delay in filing the refund claims by SEZ unit in respect of tax paid on services used for SEZ operations must be condoned liberally. In this regard, he relied upon the following decisions:- i. Woco Motherson Advanced Rubber Tech Ltd. Vs. CCE, Rajkot [2013 31 taxmann.com 363 (Ahmedabad - CESTAT] ii. Synefra Enginnering and Construction Ltd. Vs. CCE, Vadodara-II [2013 34 taxmann.com 41 (Ahmedabad - CESTAT] 5. On the other hand, the learned AR defended the impugned order. 6.1. After considering the submissions of both the parties and perusal of records, I find that in the present case, the Commissioner(Appeals) while rejecting the refund claims of the appellant has violated the principles of natural justice and has not afforded opportunity of hearing to the appellant to explain the justifiable reasons for filing refund claims after the periods specified in the notification. Further I find that the Commissioner(Appeals) has totally ignored the Notification No.12/2013 under which the appellant has filed the refund claims rather the Commissioner(Appeals) has wrongly considered the refund claims of the appellant under Rule 5 of the CENVAT Credit Rules read with N....
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....the ground of delay, cannot be sustained. This is a fit case for condonation of delay having regard to the facts and circumstances. While the appellant have admittedly produced invoices and have got proof of payment, it is appropriate that the matter is remanded to original adjudicating authority to verify the correctness of the amounts claimed, proof of payment and sanction of refund. It is made clear that the delay in filing the refund claim is condoned. 6.2. Further in the case of Suzlon Wind International Ltd. Vs. CCE(Appeals), Mangalore [2016-TIOL-2027-CESTAT-BANG], the Tribunal held that prayer for extension of time to claim refund can be made in the refund application itself. It is also held that the spirit of notification is such that a liberal approach would be adopted while considering the condonation of delay in filing the refund application. 7. I also find that both the authorities have not considered the reasons given by the appellant for filing the refund claims after the expiry of the period specified in the notification. Though the appellant has given justifiable reason explaining the delay in filing the refund claims, the same has not been considered by the l....