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CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

CHENNAI
REGIONAL BENCH - COURT No. I
Excise Appeal Nos. 42083 of 2016
(Arising out of Order-in-Appeal No.303/2016 (CXA-II) dated 16.08.2016 passed by
Commissioner of Central Excise (Appeals-II), Chennai)

Vishay Transducers Pvt Ltd ….. Appellant

"NAWAZISH UNIT 28, 2nd Floor,
Khader Nawaz Khan Road,
Chennai -600 006.
Versus

The Commissioner of CGST & Central Excise …Respondent

Chennai North Commissionerate
No.26/1, Mahathma Gandhi Road,
Nungambakkam, Chennai 600 034.

APPEARANCE :
Shri J.V. Niranjan, Advocate for the Appellant
Shri Anoop Singh, Authorised Representative for the Respondent

CORAM :
HON’BLE MR. M. AJIT KUMAR, MEMBER (TECHNICAL)
HON’BLE MR. AJAYAN T.V. MEMBER (JUDICIAL)

FINAL ORDER No.40075/2025

DATE OF HEARING: 19.12.2024
DATE OF DECISION:10.01.2025

Per AJAYAN T.V.

The appellant has preferred this appeal being aggrieved by the

impugned order in appeal by which the adjudicating authority upheld the

order passed by the lower authority.

2. The brief facts of the case are that the appellant is a manufacturer

of load cells falling under Chapter heading 90300000 of the Central

Excise Tariff Act, 1985. They had filed a refund claim for Rs 76,61,153/-

on 19.11.2012 under Rule 5 of Cenvat Credit Rules, 2004 (hereinafter

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referred to as "CCR,2004") pertaining to unutilized cenvat credit

accumulated on inputs and input services used in the export of final

products for the quarter ending December, 2011 which was submitted

along with enclosures on 23.11.2012 with the Assistant/Deputy

Commissioner of Central Excise, Perungudi Division and was duly

acknowledged under dated seal and signature. The said claim received

on 23.11.2012 was returned by the then Assistant Commissioner on

26.11.2012, on the grounds of non-submission of some relevant

documents for processing the refund claim. The appellant then refiled

their claim vide letter dated 07.08.2013 referring therein to the returning

of the refund claim on grounds of non-submission of documents and

stating that their re-submission is pursuant to the advice to file the

refund claim afresh. The letter has been acknowledged under dated seal

and signature on 10.12.2014. The Department being of the view that the

said claim was filed belatedly beyond one year as stipulated under law,

issued a show cause notice (SCN in short) to the appellant for the

rejection of the same as time barred. After due process of law, the

Respondent rejected the refund claim as time barred under Rue 5 of

CCR,2004 and Notification No. 5/2006 CE (NT) dated 14.03.2006 as

amended read with Section 11B of the Central Excise Act, 1944.

Aggrieved by the impugned order in original, the appellant preferred an

appeal before the Commissioner (Appeals-II), Chennai, who upheld the

impugned order in original. Aggrieved by the order of the appellate

authority, the appellant is before this Tribunal.

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3. The Ld. Advocate Shri. J.V. Niranjan appeared and argued for the

appellant. It is his submission that the refund claim was filed in person

and the fact of receipt of their refund claim with enclosures as per the

covering letter dated 19.11.2012 was accepted by the officer of the

Division duly acknowledged clearly establishes the fact that the refund

claim of the appellant did enclose all the documents that are listed in the

covering letter together with the refund claim. He would submit that the

ground for rejecting the claim being non submission of chartered

accountant’s certificate for receipt and consumption of inputs and copies

of invoices for clearance of goods for home consumption in terms of the

requirements of Notification No.5/2006-CE (NT) dated 04-03-2006 as

amended itself is untenable as the said notification was superseded by

Notification No.27/2012-CE (NT) dated 18.06.2012 and the appellant’s

refund claim dated 19.11.2012 ought not to have been rejected by

applying the conditions of erstwhile notification No.5/2006-CE(NT). That

in any event, when the refund claim was filed, in case of any deficiency

instead of calling upon the appellant to remove the same, returning the

claim vide letter dated 26.11.20123 itself was not permissible and the

delay in resubmission was consequent to misplacing of the documents

submitted by the appellants in the Division office leading to the appellant

having to refile the refund claim by tracing such documents again for the

said purpose. He prayed that the denial of refund is not legal and not

proper and therefore the impugned order in appeal may be set aside and

the appeal allowed with consequential relief.

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4. The Learned AR Shri. Anoop Singh with commendable

characteristic fairness stated that the issue of whether returning a refund

claim for deficiency in documents/non submission of documents was

legal or not and whether the relevant date to considered for determining

whether the refund claim was submitted in time was the date of original

submission of the claim or the date of its resubmission rectifying the

deficiencies, stood settled in favour of the appellant by virtue of judicial

decisions which have held that returning of the claim was improper and

that the relevant date of submission of refund claim to determine

whether it was filed within time, would be the date of receipt of the

original refund claim as filed and not the date of resubmission of the

refund claim on remedying the deficiency.

5. We have heard both sides and perused the records. Learned

Appellate Authority has placed reliance on paragraph 2.4 of Chapter IX

of the Central Excise Manual supplementary instructions which in fact

states inter-alia that submission of refund claim without supporting

documents will not be allowed. Indisputably it is an admitted fact that

the original refund claim filed was returned to the appellant. When the

prevailing instructions itself according to the Appellate authority requires

that submission of refund claims without supporting documents is not to

be allowed, the factum of its return presupposes its filing with supporting

documents, albeit later found to be of incomplete nature. Thus, the

reliance placed by the learned appellate authority on the decision in

Malwa Cotton Spinning Mills Ltd v CCE, Ludhiana, reported in 2013 (295)
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ELT 313 (Tri-Del) is misplaced which even otherwise was a case was on

interest liability and not on limitation.

6. We note that this Tribunal, in Abhedya Industries Ltd v CCE

&ST, Hyderabad-III, reported in 2016(340) ELT 398 (Tri-Hyd),

has held the law to be settled that that the date of initial submission of

the refund claim shall be the actual date of submission for the purpose

of limitation under Section 11B of Central Excise Act, 1944 and not the

date of resubmission. Again, in Balmer Lawrie & Co v CCE, Kolkata-

VI, reported in 205 (315) ELT 100 (Tri-Kolkata), in a case where

refund of duty paid in excess at the time of removal/clearance from the

factory was sought, it has been held as under:

“The cause of action arose on the date of payment of duty, and the

claim had been filed within the time stipulated under Section 11B

of the CEA, 1944, as prescribed on 11-12-2002. The mandate of

sub-section (2) of Section 11B of CEA, 1944 is that the Asst.

Commissioner should accept it in full or in part or may reject it.

However, instead of rejection of the claim, it was directed by the

Department on 5-3- 2003, to file more documents/removal of

defects, which the Appellant had carried out the said direction by

removing the defects. In such circumstances, it cannot be said that

the refund claim was filed for the first time on 12th June, 2003 and

hence, barred by limitation. In our view, the date of claiming the

refund of duty paid in excess, be the date when the claim was

launched with the department i.e. on 11th December, 2002.

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Similar view has been held by the Tribunal in CCE Bangalore v

Supreme Renewable Energy Ltd, 2009 (238) ELT 494 (Tri-

Chennai)

7. We find that the issue is no more res-integra as the Honourable

High Court of Gujarat in United Phosphorous Ltd v Union of India,

reported in 2005 (184) ELT 240 (Guj) has held as under:

“3. The applications show that they were made under Section 11B

of the Central Excise Act, 1944. Under Section 11B of the Act, any

person claiming refund of any duty of excise may make an

application for refund of such duty to the Assistant Commissioner

or Deputy Commissioner of Central Excise before the expiry of

one year from the relevant date in the prescribed form

accompanied by documentary or other evidence as the applicant

may furnish, to establish that the amount of duty of excise in

relation to such refund claim was collected from or paid by him

and that the incidence of such duty had not been passed on by

him to any other person. Under subsection (2), the Assistant

Commissioner or the Deputy Commissioner as the case may be,

is empowered to make an order of refund. Any person aggrieved

by any order made under Section 11B would be entitled to prefer

an appeal under Section 35 of the Act. It is, therefore, incumbent

upon the authority to which an application is made for refund to

make an order on such application. By the impugned order, the

Assistant Commissioner adopted a novel procedure of returning

the claim application which is not contemplated by the provisions

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of the Act or the Rules made thereunder. By returning the

application claiming refund under Section 11B which was already

filed in the office of the Assistant Commissioner, the officer acted

contrary to the provisions of the Act and the Rules under which

he was obliged to make an order on the merits of an application

for refund: Once any such application is filed before the

concerned authority. It becomes a part of the record of the

concerned authority and important original record like an

application for refund could not have been parted with by the

Assistant Commissioner by returning it to the claimant. Returning

of such application has a serious consequence, because, the fresh

application may not be within time from the relevant date and the

claimant would lose a valuable right of filing an appeal, if any

adverse order would have been passed on the application

rejecting it on the ground of any infirmity that may have been

noticed by the authority instead of the unceremonious return of

the application. The course adopted by the Assistant

Commissioner, of returning the claim application without making

an order thereon amounts to refusal to perform the statutory

duty imposed on him to consider the application and make an

order thereof, in accordance with law.”

8. This Tribunal in its decision in Chennai Petroleum Corporation

Ltd v Commr of GST & C. Ex, Chennai, reported in 2019 (369) ELT

1636 (Tri-Chennai) has followed the Gujarat High Court decision in

United Phosphorous v UOI, supra and has held that when the refund

sanctioning authority who received the original refund claims has not
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rejected these refund claims on merits and has merely returned the

same, further filing of the refund claims ought to be considered only as

resubmission and not as fresh claims.

9. In light of our discussion above and following the ratio laid down in

the judgements supra, we are of the considered view that the impugned

orders of both the lower authorities cannot sustain. The refund claim filed

by the Appellant is to be taken as filed on 23.11.2012, the date on which

the original refund claim was acknowledged as received by the

Department. Hence the impugned orders of both the lower authorities

are set aside and the matter is remitted back to the jurisdictional

adjudicating authority to process the refund claim on merits. Appeal

stands allowed.

(Order pronounced in the open court on 10.01.2025)

(AJAYAN T.V.) (M. AJIT KUMAR)

MEMBER (JUDICIAL) MEMBER (TECHNICAL)

psd