Emm Jay Travels and Exports P. Ltd. Vs. Cce - Court Judgment

Excerpt:
"as per the statutory provisions contained in section 11b ibid, as made applicable to service tax provisions, the 'relevant date' in the instant case is the date of payment of duty. deputy commissioner has wrongly interpreted the relevant date. accordingly, it is seen that refuna claim has been erroneously sanctioned which was not maintainable. accordingly, out of total sanctioned refund of rs. 19.816, the amount sanctioned as refund in respect of service tax paid on or before 6.1.98 repeat 6.1.98 either paid or on tickets cancelled is clearly barred by limitation. the hon'ble supreme court in the case of collector of central excise v. doaba co. sugar mills, 1988 (18) ecc 157 (sc) : 1988 (37) elt 478 (sc) held as under: 'but in making for refund before the departmental authority, an.....

Judgment:
"As per the statutory provisions contained in Section 11B ibid, as made applicable to service tax provisions, the 'relevant date' in the instant case is the date of payment of duty. Deputy Commissioner has wrongly interpreted the relevant date. Accordingly, it is seen that refuna claim has been erroneously sanctioned which was not maintainable. Accordingly, out of total sanctioned refund of Rs. 19.816, the amount sanctioned as refund in respect of service tax paid on or before 6.1.98 repeat 6.1.98 either paid or on tickets cancelled is clearly barred by limitation. The Hon'ble Supreme Court in the case of Collector of Central Excise v. Doaba Co. Sugar Mills, 1988 (18) ECC 157 (SC) : 1988 (37) ELT 478 (SC) held as under: 'But in making for refund before the departmental authority, an assessee is bound within four corners of statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The Authorities functioning under the Act are bound by the provisions of the Act.' In view of the above, the Order-in-Original No. 328/DC/99 dated 11.1.2001 passed by Deputy Commissioner, Central Excise Division, Jalandhar granting refund of Rs. 19,816 is set aside under Section 84 of Chapter V of Finance Act, 1994. The Notice is directed to deposit the sum of refund received by them in respect of service tax deposited on 6.1.98 or prior to 6.1.98 either paid in excess or paid on cancelled tickets, out of the total sum of Rs, 19,816 received by them which is time-barred under the Section 11B as made applicable to service tax provisions." 2. The facts of the case briefly stated are that M/s. Emm Jay Travels & Exports P. Ltd. are Air Travel Agent Services. The Superintendent, Central Excise, Jalandhar in his assessment order dated 30.6.98 on the ST-3 returns for the quarters ending September 1997, December 1997 and March 1998 gave orders that appellant has paid excess amount of tax by Rs. 318, Rs. 1395, Rs. 17.795, Rs. 312. He also mentioned on the said ST returns that appellant can prefer refund claim with the proper officer for the said excess paid as service tax. Consequent upon the decision of the Superintendent the appellant filed refund claim for Rs. 19,816 on 6.7.98. The Superintendent raised some objection and returned the refund claim. The appellant has re-submitted the refund claim alongwith the requisite documents on 10.8.98. A Show-cause Notice was issued to the appellant on two grounds, namely, that the claim was time-barred and attracted unjust enrichment. The Deputy Commissioner allowed the refund claim holding that the relevant date for refund in the instant case under Section 11B is 30th June 1998 and that there was no question of unjust enrichment. This order of Deputy Commissioner was reviewed by the Commissioner Appeal was filed and Commissioner (Appeals) passed the order as indicated above.

3. Arguing the case for the appellant Shri Sudhir Malhotra, learned Counsel submits that the appellant filed refund claim on 6.7.98 pursuant to finalisation of assessment by the Superintendent under its order dated 30th June 1998. He submitted that the claim of the appellant was not hit by limitation. He submits that this Tribunal in the case of Omega Alloys Castings (P) Ltd, v. CCE, Bhopal, 2000 (121) ELT 336 held that question of time-bar does not arise in case of consequential relief.

4. The main contention of the Counsel for the appellant is that the appellant was not given any opportunity of knowing the exact grounds for initiating revision proceedings and thus there was a defiance of the principles of natural justice. Learned Counsel submits that the appellant's main business is to sell tickets for air travel. He submits that a number of airtickets were cancelled or modified. He referred to Trade Notice No. 6/97 dated 1.7.97 issued by Mumbai-I Commissionerate clarifying that assessee need not file separate refund claim in respect of each ticket - cancelled or modified. The learned Counsel, therefore, prayed that since there was violation of principles of natural justice, the Appeal may be allowed.

5. Shri Atul Dixit, learned SDR submits that the learned Commissioner had reviewed the order of sanction of refund claim of Rs. 19,816 on the ground that the claim was time-barred. He submits that review has been done in accordance with the provisions of relevant Section and Rules.

He submits that in so far as denial of natural justice is concerned, the appellant had appeared for personal hearing and could have raised the question of the grounds of review. He submits that there was not denial of natural justice.

6. We have heard the submissions of both the sides. We note in the instant case that the issue has been decided by the Tribunal. We also not that the issue also appears to have been covered by the clarification given by the Trade Notice of Mumbai-l pommissionerate vide their Trade Notice cited above. These documents were not examined and were not cited before the learned Commissioner (Appeals). We, therefore, consider it a fit case for remand. The Appeal is, therefore, remanded to the Commissioner concerned with the direction that he will re-examine the entire issue in the light of the Tribunal's decision cited above and in the light of the clarification given in the Trade Notice issued by Mumbai-l Commissionerate and then pass appropriate orders in accordance with law after providing the appellant an opportunity of being heard in person.