"PAN : 0532-24001 49 RE CUSTOMS, EXCISE & SERVICE TAX APPEL RIBUNAL 38,MG Marg Civil Lines,Old Red Building, Atahabad-211001 Regional Branch, Allahabad ERED / AD Dated: 14/02/2017 Yor Appellant as per address in table below Respondent as per address in table betow Hinal Order No. A/70464/2017. BR] dated 13/02/2017 [ant directed (o transmit herewith a cevtified copy of orsier passed by the Tribunal under section 129-A(4) of the Customs Act, 1962. Asstt. Regist: Application Appeal Name and Address of Appellant ©S411629'4 Commissioner CUSTOMS Central EXCISE and SERVICE TAN C-S6/42, NOIDA, UTTAR PRADES 201307 Name and Address of Respondent Stargoki ilernational A Wazirpur iadustrial Area,,, DELMI, HOLLAN, Copy Tor 3 Bar Association, AT, Allahabad 4 Director Publications, Customs, Excise. 11° Be 5 Més Contax Publications Pvt. Ltd., 1512-8, Bhishm Pie g. New Dethi-3 @ Company Law tastitute of India Pvt, Lid.. No.2 fold 10.56}, Vaithyaram Street, Nagar, Chennai-17 oud, New Dethi- [16005 7 Faxmann Allied Service Pvt. Ltd. $9/32, Mew Roktet, 8 LAWCRUX Advisors Pvt. Lid. LAW House, 1-8, Sect 10, Faridabad 121003 (Haryana) 9 ‘FaxtndiaQnline.com Pvt. Ltd, 2nd Floor, Vasiat Are Vasant Kunj, New Delhi - 11070 eeciot s oo 10 Mark Professional Services Pvt. Lid. HES Ps erest Wick. Aditya Enclave, Hyderabad ~ 38 11 The ICPAT soci “500082 2, Nagarjuna Hill vnesasntta Liss com), PF-19,1st FloorCross River Mall, CBD 12 M/S Knowledg Ground. Near Kark Prov oomia Court, Delhi-1108 ing Pvt. He.t 13 CDR. 14 Office IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, REGIONAL BENCH : ALLAHABAD Appeal No.C/S41.16/2014:1SM] our of — Order-in-Appeal No, NOI/EXCUS/G00/APPL/ 156/14 dated 014 passed by Commissioner {Appeals) Customs, Central Excise & Fax, Noida. For approval and signature: HON‘BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) 4, Whether Press Re: s may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No be 2. Whether it should be released under Rute 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 1 Yes 3. Whether His Lordship wishes to see the fair capy of the Order? ; Seen 4. Whether Order is to be circulated to the Departmental Autharities? Commissioner of Customs, Central Excise & Service Tax, Noida APPELLANT(S) VERSUS M/s Stargold Internationa! .RESPONDENT (S) APPEARANCE Shri D.K. Deb, Asstt. Commer (A.R.) for the Department (s) None for the Respondent (s) i 4 CORAM: HON’BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) DATE OF HEARING & PRONOUNCEMENT Pott 2eLh_. FINAL ORDER NO.:. Appeal No.C/54116/14 Mr. Anil Choudhary : The issue in this appeal is, whether the claim of refund af SAD which regard to 22 Bills of Entry which have been filed during the period 29.01.2010 to 20.09.20] GQ is barred by limitation or nor? The admitted facts are that the respondent-assessee imported various types of scrap and filed 22 Bills of Entry during the period 29.01.2010 to 20.09.2010. There was a search and seizure by DRI at the various premises of the respondent-assessee on 30.09.2016 and seized all records including the Original Sill of Entry, TR-6 Challans, and aiso the subsequent invoices for resale and challans for VAT payment etc. The assessee, on 20.10.2010, informed the ADC/ICD about the search and seizure by DRI and also informed that they are entitied to refund of SAD, as they have resold the imported goods and deposited Sales Yax/VAT, but as the said documents relevant for processing of refund claim are tying in the custody of DRI, time be extended for filing the formal claim. After several correspondences with the DRI, appellant could get only the photocopies and on that basis, they filed the refund claim: and thereafter, SCN was issued as to why the refund claim should net be rejected for not filing Original Bill of entry and TR-6 chailans. Thereafter, the assessee preferred Writ Petition in the High Court in December, 2012 and subsequently in February, 2013, the said documents were released. The assessee filed their formal claim for refund of SAD on 07 May, 2013 and the same is held as time barred by the Adjudicating Authority - Deputy Commissioner vice Memorandum Order dated 29.11.2013, observing that the refund claim should have been preferred within a period of 12 months from 3 the date of deposit of duty/SAD particularly in view of Circular No.16/2008 ~ CUS, which prescribed a period of 12 months from the date of payment of duty as the Hmitation period. Being aggrieved, the appellant preferred appeal before Ld. Commissioner {Appeals) who have been pleased to allow the appeal observing that the prescribed period of limitation of one year as mentioned in the Notification No.102/2007 ~ CUS as amended should be calculated, excluding the period during which the relevant documayts were lying with the DRI. Accordingly, he found that on exclusion of such period, the refund claim have been filed within 12 months. Accordingly, the Order-in-Original was set aside, directing the Adjudicating Authority to process the refund claim after verifying the relevant documents. Being aggrieved, the Revenue is in appeal on the ground that the Ld. Commissioner (Appeals) have erred in excluding the period when the relevant documents were not in the possession of the assessee for claiming the refund. The respondent-assessee is absent in spite of notice. As the issue lies in a narrow compass, the appeal is taken up for final disposal with the assistance of Ld. AR for Revenue, and perusal of records. Having heard the Ld, AR and on perusal of records, 1 find that the respondent-assessee had filed the refund claim, first of all on 20.10.2010, when it had informed the ADC/ICD in writing that they are entitled to refund claim of SAD but the formal claim cannot be filed immediately, as the documents are lying in the custody of DRI, Pursuant to search and seizure which took place on 30,09.2010. Appeal No.C/S411 6/14 Accordingly, I hold that the refund claim had been made on 20.10.2010, which was well within time. Secondly, I find that there ig no error in the order of the Commissioner (Appeals), + has directed to exclude the time for calculation of limitation, when the documents were lying in the custody of DRI. The same Is in agreement with the legal principles and the provisions of the Limitation Act. Accordingly, ] hold that there is no error in the impugned order. Hence, the appeal of Revenue is dismissed. The respondent-assessee iS entitled to refund of their SAD. adjudicating Authority 1s directed to grant the refund within 2 period of 60 days with interest as per Rules, if not granted so far. (Dictated & Pronounced in the open Court) (ANIL CHOUDHARY) MEMBER (JUDICIAL) Mishra "