Page 176 - GSTL_2nd July 2020 _Vol 38_Part 1

94 GST LAW TIMES [ Vol. 38
pages 53 to 60 of the paper book was between 5 months and 26 months. He
would urge that although the Assistant Commissioner/Deputy Commissioner
had the discretion to condone the delay he has not done so and such denial of
condonation has been upheld by the first appellate authority. He prays that the
delay may be condoned and they may be allowed refund of the amounts which
were found to be available to them on merits. He relies on the decision in the
case of HPL Power Systems Ltd. decided by this Bench by Final Order No.
A/31220-31221/2018, dated 28-9-2018 in which, overruling the decision of the
lower authority, the delay in filing refund claims by the SEZ unit was condoned
by this Bench. He also relies on the decision in the case of Divis Laboratories [2014
(36) S.T.R. 398 (Tri. - Bang.)] in which similar decision was taken. He prays that
the delay may be condoned and they may be allowed refund.
4. Learned AR supports the impugned order as well as the order of the
lower authority. He asserts that the refund claim must be filed within the time
limit prescribed in the exemption notification. If there is any delay, there must be
sufficient grounds for doing so and the appellant had not produced sufficient
grounds and therefore their request for condonation of delay was correctly re-
jected by both the lower authorities. He relies on the following case laws :
(1) LNG Security Services Pvt. Ltd. v. CST, Delhi [2017 (5) G.S.T.L. 291
(Tri. - Del.)]
(2) M.S. Metals v. CC (Prev.) Patna [2017 (345) E.L.T. 113 (Tri. - Kol-
kata)].
(3) PNC Constructions Co. Ltd. v. CCE, Lucknow [2009 (247) E.L.T. 345
(Tri. - Del.).
He would submit that as per the ratio laid down in the aforesaid three decisions
any refund claim filed beyond the period of limitation must be rejected.
5. I have considered the arguments of both sides and perused the rec-
ords. The short point to be decided is whether the Assistant Commission-
er/Deputy Commissioner was correct in rejecting the request of the appellant for
condonation of delay in filing the refund claim under Notification No. 17/2011-
S.T., dated 1-3-2011 when the notification has provided for such condonation.
6. The case of the department is that the appellant had not adduced
sufficient grounds for allowing the refund claim. Learned AR also relied on the
aforesaid decisions to assert that the refund claim beyond the period of limitation
cannot be sanctioned. Learned Counsel for the appellant on the other hand prays
for a lenient view in view of the difficulties which they were going through dur-
ing the relevant period including a reference of their company to BIFR. They
were not able to keep track of all relevant matters and therefore there was a delay
in filing the refund claim which should have been condoned.
7. I have considered the decisions relied upon by both sides. I find that
in similar cases with respect to Exemption Notification No. [17/2011] available to
SEZ developers, this Bench had taken a liberal view and condoned the delay as
was available under the Exemption Notification. The decisions relied upon by
the Learned AR pertain to claim of refund under Section 11B of the Central Ex-
cise Act and Section 27 of the Customs Act read with Notification No. 102/2007
(SAD refund) which do not provide for any condonation of delay. In respect of
such refund claims, the statutory time limit has to be adhered to and once the
refund claim is hit by limitation, no refund claim could be sanctioned.

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