Appeal against assessment order = payment under protest = refund claim exempt from time limit.

The Tribunal held that the filing of an appeal against the assessment order constituted payment of duty under protest, exempting the refund claim from the six-month limitation period under the second proviso to Section 27(1) of the Customs Act. The Commissioner (Appeals) erred in applying the fourth proviso instead of the relevant second proviso. As a result, the Tribunal set aside the Commissioner's order and allowed the Appellant's refund claim with all consequential benefits.

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Issues Involved:
1. Whether the refund claim is barred by limitation under Section 27 of the Customs Act.
2. Whether the payment of duty can be considered as made under protest due to the filing of an appeal against the assessment order.
3. Applicability of the second and fourth provisos to Section 27(1) of the Customs Act.

Issue-wise Detailed Analysis:

1. Whether the refund claim is barred by limitation under Section 27 of the Customs Act:
The Appellant's refund claim was initially rejected on the grounds of limitation, as per Section 27(1) of the Customs Act, which mandates that a refund application must be filed within six months from the date of payment of duty. The Appellant argued that this limitation does not apply as the duty was paid under protest. The Tribunal had previously remanded the matter to the Adjudicating Authority to determine whether the duty was indeed paid under protest, which would make the limitation period inapplicable under the second proviso to Section 27(1).

2. Whether the payment of duty can be considered as made under protest due to the filing of an appeal against the assessment order:
The Appellant contended that the filing of an appeal against the assessment order itself implies that the duty was paid under protest. This argument was supported by several judicial precedents, including the Constitution Bench judgment of the Supreme Court in Mafatlal Industries Ltd., which held that contesting the liability by way of appeal naturally implies payment under protest. The Tribunal and various High Courts, including the Punjab and Haryana High Court in M/s Ind Swift Lands Ltd., have upheld that filing an appeal against an assessment order amounts to payment under protest, thereby exempting the refund claim from the limitation period.

3. Applicability of the second and fourth provisos to Section 27(1) of the Customs Act:
The second proviso to Section 27(1) states that the limitation of six months shall not apply where any duty has been paid under protest. The fourth proviso, inserted with effect from May 11, 2007, provides that where the duty becomes refundable as a consequence of a judgment, decree, order, or direction of the appellate authority, the limitation shall be computed from the date of such judgment, decree, order, or direction. The Tribunal clarified that the Appellant's refund claim did not arise as a consequence of any such order but was based on the contention that the duty was paid under protest. The Commissioner (Appeals) erred by focusing on the fourth proviso instead of the second proviso, which was the relevant provision for determining the applicability of the limitation period in this case.

Conclusion:
The Tribunal concluded that the filing of an appeal against the assessment order should be deemed as payment of duty under protest, making the six-month limitation period inapplicable under the second proviso to Section 27(1) of the Customs Act. Consequently, the order passed by the Commissioner (Appeals) was set aside, and the Appellant's refund claim was allowed with all consequential benefits.

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