2020 (10) TMI 1064

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....nto the merits of the refund claim. 2. Briefly the facts of the present case are that the appellant is a 100% EOU - STPI. They have filed a refund claim on 30/09/2010 for Rs. 1,24,27,040/- seeking refund of unutilized cenvat credit paid on the input services used for providing the output services exported during the period October 2009 to March 2010 under Rule 5 of CENVAT Credit rules, 2004 (CCR, 2004 for short) read with Notification No.5/2006-CE(NT) dt. 14/03/2006 as amended from time to time. Appellant was issued a show-cause notice dt. 11/11/2010 seeking to reject the refund claim filed by it under Rule 5 of CCR. After following the due process, the Assistant Commissioner vide Order-in-Original dt. 29/02/2012 issued on 09/03/2012 rej....

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....as not returned undelivered, therefore it is assumed to have been delivered and secondly it is held that the Department has a practice to contact the assessee to deliver the undelivered articles. He further submitted that both the findings lack legal support inasmuch as no proof of delivery has been produced by the respondent or considered by the learned Commissioner(Appeals) and such assumptions are invalid in law. Learned counsel further submitted that the respondent never replied to several follow up letters dt. 11/07/2012, 21/08/2012 and 17/10/2012 written by the appellant enquiring about the status of the adjudication. But the Department did not give any reply to any of the letters written by the appellant. Learned counsel further subm....

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....ling Co. (P) Ltd. [2010(255) ELT 321 (P&H)] ii. Jai Enterprises Vs. CC(Appeals), Chennai [2006(206) ELT 41 (Mad.)] iii.P. Bhoormal Tirupati Vs. Addl. Collector of Customs, Madras [2000(126) ELT 65 (Mad.)] iv. Singh Enterprises Vs. CCE, Jamshedpur [2008(221) ELT 163 (SC)] v. V. Raja Kumari Vs. P. Subbarama Naidu and anr. (SC judgment dt. 02/11/2004 in Appeal (crl.) 887 of 1999. 6. We have considered the submissions made by both parties. Before we proceed to examine the question involved in this case, it would be apposite to take note of the relevant provisions of Section 37C of Central Excise Act, 1944 as applicable at the relevant time and the same is reproduced herein below:- Section 37C. Ser....

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....rovided in sub- Section(1). 7. The only issue involved in the present case is whether the learned Commissioner(Appeals) is right in rejecting appeal filed by the appellant on the ground that it is barred by limitation when the appellant claims that they were served with a copy of the order only on 07/12/2012 and the appeal is filed within 2 months and it should be considered as the appeal is within time or not. Further we find that as per the respondent, the Order-in-Original dt. 29/02/2012 was issued on 09/03/2012 and the appellant has filed the appeal before the Commissioner on 05/02/2013 which is beyond the period as prescribed in Section 85(3A) of the Finance Act, 1994. We further find that the Department has not been able to establi....