2024 (9) TMI 1259 - AT - Customs

Customs broker wins CVD refund after department wrongly recovered exempted amount under Notification 30/2004-CE

M/s Vinod Brothers Versus Commissioner of Customs, Amritsar

CESTAT Chandigarh allowed the appeal of a customs broker who sought refund of CVD recovered by the department. The broker had filed Bills of Entry for ... Rejection of refund claim on the ground of time limitation - Bills of Entry and TR-6 Challans were not endorsed as ‘Under Protest’ - HELD THAT:- It is an undisputed fact that the appellant is a Custom Broker and filed Bills of Entry during October 2012 to April 2013 on behalf of the importers M/s Jute Pack India and M/s Haryana Trading Company and availed the benefit of exemption of CVD under Notification No. 30/2004-CE dated 09.07.2004. After the expiry of more than one year, the department took a view that benefit of exemption from payment of CVD under the said notification was not available and recovered the same from the appellant along with interest. In the meantime, the appellant lodged the protest in the form of a letter dated 06.06.2014 stating that they are not liable to pay the duty and in case, the matter is decided in favour of the Assessee, the refund should be granted to the appellant. Thereafter, the Hon’ble Apex Court in the case of M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI [2015 (4) TMI 561 - SUPREME COURT] held that the benefit of CVD exemption is available to the importer of final product and after the decision of Hon’ble Apex Court, the appellant filed refund claim on 07.01.2016, which was rejected by both the authorities below as time barred. It is found that the appellant vide letter dated 06.06.2014 have lodged protest, though the word ‘Under Protest’ was not specifically written in the said letter, but the spirit of the contents of the letter shows that it was the protest because in the Customs Act as well as in the Central Excise Act, no format is prescribed for lodging the protest. In the present case, no show cause notice was issued and no adjudication took place. It is also found that the amount was deposited by the appellant on the insistence of the department and not voluntarily and it was not the duty, it was merely a deposit. Therefore, the appellant is entitled to get the refund of the amount deposited under protest and denial of refund as time-bar is not sustainable. The judgments relied upon by the learned AR are not applicable in the facts and circumstances of the present case and are distinguishable on facts. The impugned order is not sustainable in law and therefore, set aside - the appellant is entitled to refund of the amount deposited along with interest on delayed refund as per rules - appeal allowed. Issues Involved:1. Legality of the rejection of the refund claim by the Commissioner (Appeals).2. Applicability of the limitation period for refund claims.3. Whether the duty paid was under protest.4. Entitlement to interest on delayed refund.5. Consistency in adjudication by the Appellate Authority.Issue-wise Detailed Analysis:1. Legality of the rejection of the refund claim by the Commissioner (Appeals):The appeal is directed against the order dated 05.02.2019 by the Commissioner (Appeals), which upheld the Order-in-Original dated 13.10.2017, rejecting the appellant's refund claim. The appellant, a Custom Broker, had paid CVD under protest and sought a refund post the Supreme Court's decision in SRF Limited vs. CC, Chennai, which held that the benefit of CVD exemption is available to importers when the question of availing Cenvat Credit on inputs does not arise. The Commissioner (Appeals) rejected the refund due to the absence of 'Under Protest' endorsement on Bills of Entry and TR-6 Challans.2. Applicability of the limitation period for refund claims:The appellant argued that the amount paid was not a duty but a deposit, thus not attracting any limitation period. The Delhi High Court in Telecare Network India Pvt Ltd vs. UOI supported this view, stating that amounts collected without authority of law are not subject to the limitation period. The Tribunal concurred, noting that the payment was made under duress and not voluntarily, and thus the limitation period did not apply.3. Whether the duty paid was under protest:The appellant submitted a letter dated 06.06.2014 to the Additional Commissioner of Customs, indicating that the duty was paid under protest. Although the letter and TR-6 Challans did not explicitly mention 'Under Protest,' the Tribunal found that the spirit of the letter conveyed protest. The Punjab & Haryana High Court in CCE, Chandigarh-I vs. Ind Swift Lands Ltd held that an act can be under protest even without the specific words 'under protest,' as long as the conduct indicates compulsion.4. Entitlement to interest on delayed refund:The appellant claimed entitlement to interest on the delayed refund under Section 27A of the Customs Act. The Tribunal agreed, stating that the appellant is entitled to a refund along with interest as per the rules.5. Consistency in adjudication by the Appellate Authority:The appellant highlighted that in a similar case, the Appellate Authority allowed the refund in the case of Avtar Singh & Co. The Tribunal noted the need for consistency in adjudication and found that the appellant should not be discriminated against when similar facts and circumstances existed.Conclusion:The Tribunal concluded that the amount paid by the appellant was not duty but a deposit, and thus not subject to the limitation period. The letter dated 06.06.2014 constituted a valid protest. The Tribunal set aside the impugned order, allowing the appeal and holding that the appellant is entitled to a refund of the amount deposited along with interest on the delayed refund as per rules. The judgments relied upon by the department were found not applicable to the present case.