Duty paid during a pending appeal is treated as under protest, preserving entitlement to consequential refund

Duty deposited during the pendency of an appeal is treated as payment under protest, so the assessee is not required to separately comply with the protest procedure under Rule 233B to claim consequential refund after success in appeal. On that basis, rejection of refund was held unsustainable and consequential relief followed.

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Issues: Whether duty paid during the pendency of an appeal is to be treated as payment under protest so as to entitle the assessee to consequential refund without compliance with the protest procedure under Rule 233B.

Analysis: The amounts were deposited while the appellate proceedings were still pending. In such a situation, the payment is deemed to have been made under protest. Once the duty payment is treated as under protest, the formal protest procedure contemplated by Rule 233B does not have to be separately followed for the purpose of refund arising from the success in appeal.

Conclusion: The refund rejection was unsustainable and the appeal was allowed with consequential benefit to the assessee.

Ratio Decidendi: Duty paid during the pendency of an appeal is deemed to be paid under protest, and the protest procedure under Rule 233B is not for claiming consequential refund.

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