2017 (8) TMI 1207 - AT - Customs

Appellant wins refund case after Tribunal rules duty paid under protest not time-barred

The appellant's refund claim was initially rejected as time-barred for not being filed within six months of the Tribunal's order, per Section 27 of the ... Refund claim - denial on the ground of time limitation - Benefit of import under DEEC Scheme - import of White Paper Board - Held that: - the appellant had addressed a letter on 19.11.98 to the Assistant commissioner, Customs intimating that since they require the consignment urgently for their product they would be clearing the goods on payment of duty under protest for the same. I find that the said plea of the appellant has not been disputed by the lower authority. If the duty has been paid under protest, there is no vacation of the protest, on adjudication having been done against the assesse. Such protest lodged by the assesse would remain till the disputed issue is settled finally by the higher appellate forums. I also note that such deposits were made by the appellant even prior to the adjudication, when there was no confirmed demand against them. As such, the same has to be treated to be deposits - Such deposits would be refunded to the assesse on the ultimate success of their case, without attracting any limitation aspect - appeal allowed - decided in favor of appellant. Issues:1. Refund claim filed by the appellant rejected as time-barred.2. Grounds raised by the appellant regarding the duty paid under protest.3. Applicability of provisions of Section 27 of the Customs Act, 1962.4. Tribunal's remand directing the Commissioner (Appeals) to pass appropriate orders.Analysis:1. The appellant filed a refund claim after the Tribunal's order in their favor, but it was rejected as time-barred by the refund sanctioning authority. The rejection was based on the claim not being filed within six months from the date of the Tribunal's order as per Section 27 of the Customs Act, 1962. The Commissioner (Appeals) also rejected the appeal against this decision. However, the Tribunal, in a subsequent appeal, remanded the case back to the Commissioner (Appeals) for further review and appropriate orders.2. In the remand proceedings, the appellant argued that the duty was paid under protest. They contended that the amount claimed as a refund was a pre-deposit made pending adjudication of a Show Cause Notice (SCN) and should not be governed by the provisions of Section 27 of the Customs Act, 1962. The appellant also cited the provisions of Section 129AA of the Customs Act, which allows for the return of pre-deposits with interest if not returned within three months of the appellate authority's order. The appellant further emphasized that the duty payment was made under protest and should be refunded without limitations under Section 27.3. The appellate authority rejected the appeal, asserting that even if the duty was paid under protest, it was vacated upon the original adjudicating authority's order. However, the appellate authority's decision was overturned. The Tribunal held that the duty paid under protest would not be subject to the time limit under Section 27. The Tribunal emphasized that the protest would remain until the disputed issue is settled by higher appellate forums. The deposits made by the appellant before adjudication were considered as deposits and would be refunded upon the success of the appellant's case without any limitation aspect.4. Ultimately, the Tribunal set aside the impugned orders passed by the lower authorities and allowed the appeal in favor of the appellant. The Tribunal held that the duty paid under protest would not be subject to limitations under the law. The deposits made by the appellant prior to adjudication were considered as such and would be refunded upon the success of the appellant's case. The Tribunal provided consequential relief to the appellant, overturning the decisions of the lower authorities.This detailed analysis highlights the key legal issues, arguments presented by the parties, and the final decision rendered by the Tribunal in this case.