At, Customs Excise Service Tax Appellate Tribunal Regional Bench Hyderabad
By, THE HONORABLE JUSTICE: SULEKHA BEEVI C.S.
For Petitioner: Ashwavi Pahwa, Consultant And For Respondents: Arun Kumar, Deputy Commissioner (AR)
1. The above appeal is filed aggrieved by the rejection of refund claim. The appellants are registered for providing services under the category of Business Auxiliary Service. They filed application for refund of service tax to the tune of Rs. 20,84,829/- for the period October, 2010 to June, 2011 on 29-9-2011 being the service tax paid on specified services wholly consumed for authorised operations of SEZ unit. The refund claim was filed in terms of Notification No. 17/2011-S.T, dated 1-3-2011. A show cause notice was issued to the appellant proposing to reject the refund claim. After due process of law, the original authority rejected the refund claim. In appeal, the Commissioner (Appeals) upheld the rejection and thus the appellants are now before the Tribunal.
2. On behalf of the appellant, the learned consultant Shri Ashwani Pahwa submitted that the Commissioner (Appeals) has rejected the refund claim on the ground of limitation observing that the refund claim ought to have been filed under Notification No. 9/2009 and the refund claim filed under Notification No. 17/2011 is time-barred. He submitted that the said issue was not raised in the show cause notice. Further that the adjudicating authority has analysed the issue of time bar and held that the refund claim is filed within the time limit. The Commissioner (Appeals) has travelled beyond the show cause notice as well as against the findings in the order passed by the adjudicating authority to reject the refund claim on the ground of time bar. it is pointed out by the learned consultant that at the time of filing the refund claim, the Notification No. 9/2009, was not in existence and it has been superseded by the Notification No. 17/2011. That therefore the rejection of refund claim observing that it is time barred by Notification No. 17/2011, is unjustified and pleaded that the refund claim may be allowed.
3. Against this, the learned AR reiterated the findings in the impugned order. I have considered the submissions made by both sides. It is indeed correct that in the show cause notice the Department has not raised any issue of time bar. Further in para 8.1 of the Order-in-Original, the adjudicating authority has categorically held that the refund claim filed in terms of Notification No. 17/2011 is well within time. It is evident that the Commissioner (Appeals) has travelled beyond the show cause notice and also against the findings entered by the adjudicating authority and thereby putting the appellant under surprise by rejecting the refund claim on the ground of being time bar. The department has not preferred any appeal against the order passed by adjudicating authority that the refund claim is filed within time. The rejection of the refund claim by the Commissioner (Appeals) holding that it ought to have been filed under Notification No. 9/2009 is also without basis. The Notification No. 9/2009 has been superseded by Notification No.
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17/2011 and thereby at the relevant time, the option for the assessee was to file the refund claim only under the Notification No. 17/2011. Therefore, I hold that the rejection of refund claim is unjustified. The impugned order rejecting the refund claim is set aside. The appeal is allowed with consequential reliefs.