ORDER
M.V. Ravindran, Member (J)
1. This appeal is directed against the order in appeal dated 15/09/2005, which upheld the order-in-original that rejected the refund claim of the appellants for the period September 99 to 30th December 2000 on the ground of limitation.
2. The relevant facts arise for consideration are the appellants got registered as service provider under the category of clearing and forwarding agent on 06/10/99. Subsequently, it was noticed by the appellants that the services provided by them do not fall under the category of clearing and forwarding agent, but they get covered under the port services, which were brought into the Service Tax net with effect from 16/07/2001. Protracted correspondence was entered between the appellants and the department and the appellants filed two refund claims, one on 17/04/2000 and one on 26/06/2002. The refund claim filed on 26/06/2002 was partly allowed by the adjudicating authority and the said order was upheld by the Ld. Commissioner (Appeals) and the balance refund claims was rejected and such rejection was upheld by first appellate authority.
3. The Ld. Advocate appearing on behalf of the appellant submits that the issue of refund claim that is being rejected in this appeal is limited to the period from September 99 to 30th December 2000. It is his submission that refund application of the appellant dated 13/04/2000 is still pending and undecided while the refund claim of the appellant dated 26/06/2002 was decided by the authorities. It is submission that the refund application dated 30/04/2000 is still alive and they have not withdrawn the same from the department. Hence the amount, which has been collected and kept by the department as Service Tax on clearing and forwarding agent is without valid law.
4. The Ld. DR submits that the appellants themselves have withdrawn the refund application dated 13/04/2000 and filed a consolidated application on 26/06/2002, which covered the entire period from September 99 to 16th July 2001. Hence the refund claim as filed by the appellants is correctly decided by the lower authorities and there is no question of appeal by the appellants. It is his submission that the provisions of Section 11B will be applicable in this case and refund claim for the period September 99 to 30th December 2000 are clearly time barred.
5. Considered the submissions made in detail by both sides and perused the records. Without going into the nitty-gritty of the time bar issue, I find that the appellants had filed refund claim with the authorities on 13/04/2000. The said letter reads as under:
To,
The Assistant Commissioner,
Central Excise,
Division, Service tax
Collectorate: Panjim
1. I/We claim refund of Rs. 6,77,361/- (Rupees Six Lakhs Seventy Seven Thousand Three Hundred Sixty One only) on the grounds mentioned hereunder:
2. (a) We are providing Storage tanks on rental basis, we are not providing any C & F service.
(b) We enclose the following documents in support of the claim
1. Attested Copy of TR 6 Challans
2.
3.
3. The amount claimed was originally paid by AR1/AR5/AR6/AR7/AR8/AR9/AR10/DD1/DD2/TR6 Challan Nos. 1 to 5 dt. Deposited into State Bank of India, Vasco Branch, Treasury under the Head of Account III-Union Excise duties/Duty on ————— miscellaneous receipts/by adjustment in account current No. ———– dated ————–.
The amount claimed was debited to account current No. ——– on ——– against G.P.1. No. ——– ——– dt.——– vide entry at serial No. ——–.
4. The amount was claimed was paid vide G.P. 1 No. ——– dated ——– an invoice No. ————— dated ——– of M/s —————-.
5. The payment of refund please be made in my/our favour by a crossed cheque on —————- Treasury/by money order at Government cost.
6. I/We declare that no refund on this account has been claimed/received by me/us earlier.
7. I/We declare that the duty for which refund has been claimed has not been charged/realized from any other person and a copy of price-list relevant Gate Pass (Central Excise) like documents and invoices are enclosed.
8. I/We undertake to refund on demand being made within a months of the date of payment of any rebate erroneously paid to me/us.
9. I/We declare that the goods received by me/us after payment of Central Excise duty for which refund has been claimed has been consumed by me/us as industrial consumer/has been sold in wholesale/retail.
For United Storage & Tanks Tesminals Ltd 13.4.2000 Signature and full address of claimant.
6. It can be seen from the above re-produced letter, the appellants had sought refund of the amount of Service Tax, which was paid by them during the period September 1999 to January 2000 and this letter was acknowledged by the office of the Commissioner of Central Excise on 30/04/2000. It was the submission of the Ld. DR that the appellants had withdrawn this refund application vide their letter dated 05/12/2000. Perusal of the said letter 05/12/2000 reads as under:
Dear Sir,
Ref: C&F/Panaji (Goa)/09/1999-2000
Kindly refer our letter dated 13th April 2000, regarding cancellation our service tax registration now we are withdrawing the cancellation of our service tad as we are falling under the category of C&F agent.
Hence we request you to kindly treat the letter referred above as cancelled and referred back the registration certificate earlier enclosed for cancellation.
Necessary and applicable service tax as already been paid by us.
Kindly do the needful.
7. A plain reading of the above said letter would indicate that the appellants had sought to withdraw that portion of the letter dated 13/04/2000, which sought the cancellation of the Service Tax registration. It is very clear that the appellants had not withdrawn the refund claim filed by them on 13/04/2000. Further, I find that the refund application filed by the appellants on 26/06/2002 was a composite refund application and there is no mention of withdrawing the refund application dated 13/04/2000. On perusal of the order-in-original passed by the adjudicating authority, I find that the adjudicating authority has not given any finding as to the refund claim filed by the appellants on 13/04/2000. In the absence of any finding and/or issuance of show cause notice for rejection of refund claim of 13/04/2000, I am unable to conclude as to whether the appellant’s refund claim is hit by limitation. It is also to be noted that the letter of the appellants dated 05/12/2000, which is re-produced above indicates that they had intended to cancel only the part of the letter, which sought cancellation of the registration certificate. Since there is no finding on the said refund claim dated 13/04/2000 and/or the appellants having conceded their right to claim the refund as per the letter dated 30/04/2000, I am unable to decide the matter, either way on merits.
8. Accordingly without expressing any opinion on the merits of the case, the impugned order dated 16/09/2005 is set aside and the matter is remitted back to the original adjudicating authority to give a finding on the refund claim filed by the appellants on 13/04/2000. The adjudicating authority shall also consider all the submissions made by the appellant and the case laws on the issues before arriving at any conclusion, affording a reasonable opportunity of personal hearing to the appellants.
9. Appeal allowed by way of remand to the original adjudicating authority, as regards the amount of refund claim involved during the period September 99 to January 2000.
(Pronounced in Court on. 01/06/07)