Per Dr. S.L. Peeran:

The appellants are aggrieved with Order-in-Appeal No. 151/03-Cus. dated 19.11.2003 by which the Commissioner (A) has confirmed the rejection of refund claim as barred by time under Section 27 of the Customs Act. The appellants had filed the refund claim within six months on 13.8.2001 in respect of Bill of Entry No. 679 dated 14.2.2001. The Original Authority returned the refund application with a remark that they should re-file the same after complying with the objections raised by the office of the Original Authority. The appellants complied with the office objections and re-filed the refund application by rectifying the deficiencies on 8.3.2002. The Original Authority has taken the date of the refund application as 8.3.2002 when the defects were rectified and application re-filed. On the basis of the date of re-filing, the time for refund has been reckoned and held to be time bar. The Commissioner (A) has confirmed this order. The appellant's contend that the original date on which the refund application was filed should be reckoned for the purpose of limitation in terms of Section 27 of Customs Act. The date on which it was re-filed after complying with the deficiencies should not be taken as the date for limitation purpose. In this regard, the appellant is relying on the ratio of the judgment rendered by the Tribunal in the case of Goodyear India Limited Vs. CC, New Delhi reported in 2003 (55) RLT 555(CEGAT-Del.)=2002 (150) ELT 331 (Tri.-Del.) wherein it has been held that when the claim has been filed within time and the authority has returned the refund application to rectify the defects, then the subsequent date of resubmission should not be taken for the purpose for reckoning the limitation but the date of filing the original claim should be taken into consideration. The Tribunal has followed the ratio of Apex Court judgment rendered in the case of Commissioner Vs. Flock India Pvt. Limited reported in 2000 (40) RLT 131 (SC)=2000 (120) ELT 285 (SC) and earlier judgment of the Tribunal rendered in the case of Commissioner Vs. Bhandiguri Tea Estate reported in 2001 (134) ELT 116. The appellants seek for remand of the matter to the Original Authority to consider the refund claim on merits.

2. The learned SDR fairly concedes the matter:

3. On a careful consideration, it is seen that the refund application was filed within time and within six months from the date of the payment of duty. The defects were rectified and the refund application was re-filed on 8.3.2002. The Tribunal in the case of Goodyear India Limited (supra) has held in an identical situation that the date for limitation should be reckoned from the original date of filing of the Bill of Entry. In view of this judgment, we have to hold that the application for refund was filed within time and the same is not barred by limitation. The matter is remanded to the Original Authority to decide the case on merits by giving an opportunity of hearing to the appellant and the matter should be decided within four months from the receipt of this order. The appeal is allowed by remand to the Original Authority.