TaxTMI 
TaxTMI 
2019 (2) TMI 265
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion the goods are imported. Since the goods were imported through Tuticorin Port and cleared through Customs House, Tuticorin, the claims ought to have been filed within Customs House, Tuticorin and not before the Assistant Commissioner of Customs, Chennai. Thus, the refund claim to the tune of Rs. 7,00,21,132/- was rejected observing non-fulfilment of condition in para 2(c) of Notification No. 102/2007-Cus. dated 14.09.2007. Against this, the appellants filed an appeal before Commissioner (Appeals), who vide the order impugned herein upheld the rejection. Hence this appeal. 2. On behalf of the appellant, the learned counsel Shri P. Sridharan submitted that the appellant was regularly importing goods through Tuticorin and Chennai Sea Ports on payment of Custom duties including 4% SAD leviable under section 3(5) of Customs Tariff Act, 1975. The goods pertaining to the bills of entry for which refund claim was filed were imported through Customs House, Tuticorin. As the appellant also imports through Chennai Sea Port, they inadvertently filed the refund claims for SAD before the Deputy Commissioner of Customs (Refunds), Chennai Customs House. 11 such refund claims were filed by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sioner of Central Excise, Ahmedabad VS M/s. AIA Engineering Ltd., reported in 2009 (248) E.L.T. 826 (Tri.-Ahmd.) which was upheld by the Hon'ble Gujarat High Court as reported in 2011 (21) S.T.R.367 (Guj.). He also relied upon the decision in the case of M/s. Poulose & Matthen Vs Collector of Central Excise reported in 1989 (43) E.L.T.424 (Tri.) affirmed by the Supreme Court in 2000 (120) E.L.T.A.64 (S.C.), wherein it was held that the refund claim filed before authority not having jurisdiction is treatable as refund claim if otherwise valid. 4. The learned Authorised Representative Shri K. Veerabhadra Reddy supported the findings in the impugned order. He referred to the table in page no.7 of the impugned order and submitted that out of the 11 claims most of the refund claims have been filed on the last date for filing the claim. Three refund claims have been filed just one day prior to the due date for filing the claim. Thus, it is clear that the appellant has filed the refund claims deliberately before the Chennai Customs House in order to circumvent the delay that might have been caused in filing the refund claims before the Tuticorin Customer. Since there is no provisio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en from the above Table all the refund claims have been filed within the time prescribed by Notification No. 102/2007-Cus. dated 14.09.2007. Para 2(c) of the said notification also provides that "the importer shall file a claim for refund of the said Additional Duty of Customs paid on the imported goods with the jurisdictional Customs officer". The claims in respect of all the bill of entries pertained to clearances made through Customs House, Tuticorin. Therefore, the jurisdiction for processing of the refund claims would be Refund Section in Tuticorin Customs House. The appellant has filed the refund claims before the Customs House, Chennai. Instead of returning the refund claims after initial scrutiny stating that the same has been filed before wrong jurisdictional authority, the Deputy Commissioner of Customs has passed Order-in-Original rejecting the refund claims on 17.09.2013. Thus, after almost one year of presenting the refund claims, the department has rejected the refund claim stating that the reason of lack of jurisdiction. The appellant contends that the refund claims ought to have forwarded to the proper jurisdictional authority. The Commissioner (Appeals) has discuss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to facilitate the assessee. The department could have at least issued a deficiency memo to the appellants before passing an order rejecting the refund claim. As per Regulation 2 of Customs Refund Application (Forms) Regulation 1995, the proper officer has to intimate the deficiencies of the application to the claimant within 10 days of receipt of the claim. The order of rejection for want of jurisdiction was passed after more than 10 months. 7. Be that as it may, the issue for consideration is whether the remedy of refund, which is substantive would stand foreclosed merely with the procedural defect of filing before wrong jurisdiction. The Hon'ble Apex Court has held in various decisions that the procedural lapses cannot take away substantive remedy [Mangalore Chemicals & Fertilizers Ltd Vs Deputy Commissioner-1991 (55) ELT 437 (S.C.)]. The appellant has contended that the person looking after the refund had inadvertently filed the refund claims before the wrong jurisdiction. When the refund claims have been filed within the time and it also conforms all other legal requirements, the rejection by the Refund Processing Authority on lack of jurisdiction after sleeping over the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er (Appeals) in his order has clearly observed that on verification of the records, it was found that first time, the respondent-assessee filed the refund claim to the Deputy Commissioner, Service Tax on 28-2-2008 with acknowledgement with proper authority in time i.e. within 60 days and fulfilled the condition in the Notification No. 41/07-S.T., dated 6-10-2007. He has, therefore, held that the respondent-assessee's refund claim of service tax under Notification falls within the purview of the Assistant Commissioner/Deputy Commissioner of the Central Excise having jurisdiction over the factory/ manufacturing unit. The concerned authority has returned the claim on 8-4-2008 with a direction to file the claim to the jurisdictional Assistant Commissioner or Deputy Commissioner of Central Excise. He, therefore, found that the application of refund was filed within time limit and this was returned by the authorities and the respondent filed the same after lapse of time and as such, it is not barred by limitation. This finding was confirmed by the Tribunal with an observation that there was no infirmity in the view taken by the Commissioner (Appeals). The Tribunal has also reiterated....