2021 (4) TMI 429 - AT - Customs

Tribunal allows appeal on refund claim rejection due to limitation period; appeal considered protest against duty assessment.

The Tribunal allowed the appellant's appeal in a case concerning the rejection of a refund claim based on a limitation period after reassessment of bills ... Refund of excess duty - reassessment and entitlement to notification benefit - payment under protest - appeal as a form of protest against assessment - limitation under section 27(2) of the Customs Act - tax collection without authority of law and refund under Article 265 of the ConstitutionRefund of excess duty - payment under protest - appeal as a form of protest against assessment - limitation under section 27(2) of the Customs Act - Whether the refund claim for excess duty paid after reassessment can be rejected as time-barred when the assessee had sought reassessment and filed an appeal such that the duty was paid under protest. - HELD THAT: - The appellant imported goods and initially paid duty without availing a notification benefit. After the Commissioner (Appeals) directed reassessment extending the notification benefit, excess duty became payable to the appellant and a refund claim was filed. The authorities rejected the refund on the ground that the claim was beyond the one-year period computed from the date of reassessment. The Tribunal noted that the appellant had requested reassessment and had pursued an appeal against the initial rejection of that request; such conduct implies that the duty was paid under protest. Relying on the Tribunal's earlier decision in Bayshore Glass Trading Pvt. Ltd., which held that filing an appeal against assessment constitutes a protest in paying duty, the court concluded that the limitation bar under section 27(2) could not be invoked to deny the refund. Applying that principle to the facts, the Tribunal held the time-bar rejection unsustainable and set aside the impugned order, allowing the appeal and directing consequential relief. [Paras 4, 5]Rejection of the refund claim as time barred is unsustainable; the impugned order is set aside and the appeal is allowed with consequential relief.Final Conclusion: The Tribunal allowed the appeal, holding that payment of duty in the circumstances (having sought reassessment and appealed) amounted to payment under protest and the refund could not be refused on limitation grounds; the impugned order is set aside and consequential relief granted. Issues: Refund claim rejection based on limitation period after reassessment of bills of entry.In this case, the appellant filed 5 Bills of Entry for the import of 'Digitizer' without availing the benefit of Notification No. 12/2012-CE (Sl. No. 312). After a request for reassessment was rejected by the Assistant Commissioner, the Commissioner (Appeals) directed the lower authority to consider the benefit of the Notification. The bills of entry were reassessed, and the appellant sought a refund of the excess duty paid amounting to Rs. 29,57,931. The refund claim was rejected by the authorities citing it as beyond the one-year limitation period from the date of reassessment. The appellant approached the Tribunal aggrieved by this decision.Analysis:The appellant contended that the duty was paid under protest, and hence, the limitation prescribed under section 27(2) of the Customs Act should not apply. Citing the case of Bayshore Glass Trading Pvt. Ltd. Vs. Commissioner, Kolkata, the appellant argued that under Article 265 of the Constitution, tax collected in contravention must be refunded to the assessee. The appellant requested the Tribunal to allow the appeal based on these arguments.The Assistant Commissioner rejected the refund claim based on the limitation period. However, the Member (Judicial) noted that when an appeal is filed against the assessment of the bill of entry, it should be considered as a protest in paying the duty, as per the precedent set by the Tribunal in the case of Bayshore Glass Trading Pvt. Ltd. The Member (Judicial) found the rejection of the refund claim on the ground of being time-barred as unsustainable. Consequently, the impugned order was set aside, and the appeal was allowed with any consequential relief deemed necessary.