ASHIMA LIMITED Vs. COMMISSIONER OF C. EXCISE, AHMEDABAD

JUDGEMENT

(1.) IN all these cases appeals have been rejected on the ground that appellants have failed to file the appeals within a period of 60 days as prescribed under the law. The issue involved is refund of service tax used for manufacturing goods which were exported and refund admissible as per notification No. 41/200 -S.T., dated 6 -10 -2007. First of all, I find that both, Original Adjudicating Authority and Commissioner (Appeals) have not bothered to verify the legal position. In the preamble of order in original, the appellant has been informed that appeal has to be filed within 60 days in the form EA1, which is applicable to Central Excise appeals. At this stage learned DR submitted that the sub -section (3) of Section 85 gives an impression that it would be applicable only in the case of service tax demands for differential duty where interest and penalties are involved. He drew my attention to the clause service tax, interest or penalty in this Chapter used in sub -section (3) of Section 85 of Finance Act, 1994. It is his submission that in the case of refund, Section 85 would not be applicable and therefore, preamble of the order in original in this case has been correctly worded. I am not able to get convinced by this argument. Admittedly, Central Excise Assistant Commissioner also has jurisdiction over service tax matters where there is no separate Assistant Commissioner or Deputy Commissioner for service tax. In such a situation, it is the duty of the Original Adjudicating Authority to ensure that preamble is correctly worded. Just because the refund claim has been filed before the Assistant Commissioner of Central Excise, it does not become the matter relating to Central Excise. With due respect to the learned DR, I am unable to agree that sub -section (3) of Section 85 is only for service tax demands. What is required to be examined is whether the matter relates to service tax or not. Notification No. 41/2007 -S.T. has been issued in exercise of powers vested under Section 93 of Finance Act, 1994 and therefore it can not be said that notification is Centra1 Excise Notification. The refund has been claimed as per the provisions of this notification. The refund claim is related to service tax. Under these circumstances I have to reject the submissions of the learned DR and hold that in these cases, the provisions of Section 85 of Finance Act, 1994, would be applicable. I also hold that the Original Adjudicating Authority should have issued the preamble applicable to the service tax matters.

(2.) ANOTHER point that I noticed is that Commissioner has calculated 90 days whereas Section 85 speaks of three months. Therefore, the calculation itself is made in an incorrect manner. It is the submission of the learned advocate that in all the cases, appeals have been filed in time and in some cases the due date happened to be on Saturday and therefore, as per general provisions, appeal filed on Monday will be treated as appeal filed in time and this fact has also not considered by Commissioner (Appeals). I also find that Commissioner (Appeals) has rejected the appeals on the ground of delay without proper verification and without giving opportunity to appellants he has simply observed that appellants have not filed any reasons for delay.

(3.) IN these circumstances, the appeals are required to be remanded to the Commissioner (Appeals) to consider the matters afresh treating the matters as relating to Service Tax and decide the issue after giving proper opportunity to the appellants to present their case.