TaxTMI 
TaxTMI 
2016 (4) TMI 1222
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....ch were finally assessed after loading the declared invoice price to the extent mentioned in the Bills of Entries. It is seen that after conducting the necessary inquiries, an order in original dated 26.8.04 was issued from the Special Valuation Branch officer vide which the declared value of the imported goods was rejected and the transaction value was allowed after loading the declared invoice value by 65.75 percent in case of imports of spare parts, 45% for imports made for STP units and 26% for the imports of goods for demonstration purposes and for the appellants own internal use in their premises. The order was valid for three years and was subject to review once in every three years failing which the order would stand expired. It was....
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.... by entertaining a view that duty against the finally assessed Bill of Entry was paid during the period from 31.8.04 to 31.7.08 and the refund claim of the said payments stand made by the appellant on 12.4.10. As such, it was proposed to be rejected on the ground of limitation having been filed beyond the statutory period of 6 months from the date of payment of duty and in terms of provisions of section 27 (i)(b) of the Customs Act. 3. The appellant contested the said show cause notice on the ground that duty was being paid by them under protest, during the relevant period, by declaring the same as having been paid under proteston the TR 6 challan. In such a scenario the appellant took a stand that no limitation period would apply. In th....
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....protest does not grant the entire time frame to file refund claim of duty paid in excess and said proviso cannot be interpreted independent of section 27. By referring to the decision of Honble Supreme Court in the case of Dena Snuff P Ltd. vs. CCE Chandigarh [2003 (157) ELT 500 (SC)]. He observed that when the duty has been paid under protest, the period of limitation would start to run from the date of final decision in the assessees own case. Accordingly, he observed that in the instant case, the assesseescase was assessed finally on 29.4.09 by the SVB and the computation of limitation would start running from the said date. Accordingly, he held that inasmuch as the refund claim has been filed on 12.4.10 i.e. after 11 months and 19 days ....
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.... of one year/six months as the case may be, shall not apply when any duty and interest has been paid under protest. The appellants have strongly contended that duty stand paid by them under protest, during the pendency of the appeal before the Commissioner (Appeals) and inasmuch as such protest never stand vacated by the Revenue, no limitation would be available to the Revenue so as to deny the refund claim. 10. On the other hand, Revenues stand is that the dispute on the valuation, came to an end with effect from 23.4.09 with the passing of order by Asstt. Commissioner SVB allowing the declared value by 46% of the GPA. As such, limitation to file refund claim start running from the date of said order and refund claim filed on 12.4.2010 ....
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....is order dated 20.8.07 simplicitor remanded the matter to the original adjudicating authority to pass a denovo order. As such, it cannot be clearly concluded that the refund has not arisen out of order in appeal and it is only after the denovo proceedings were finally concluded by the adjudicating authority vide his order dated 23.4.2009, that the appellant became entitled to the refund. 12. The legal question which arises is that when the duty was paid under protest whether the period of limitation as provided under section 27 would be applicable or not. We have already observed that the second proviso to section 27 (1) is simiplicitor to the effect that limitation will not be applicable where the duty has been paid under protest. The s....
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....el Industries Ltd. vs. CCE, Calicut [2014 (301) ELT 288 (Ker)] wherein it was distinguished and law was declared to the effect that limitation of one year is not applicable in case assessee pays the duty under protest. The said decision was also distinguished by the Honble Madras High Court in the case of CCE vs. KVR Construction -[2012 (26) STR 195 (Ker]) wherein it was held that once the amounts are paid under protest, the payment must be deemed to be under protest and no limitation is applicable in the light of second proviso to section 11B. The same ratio would apply to the refund claim made under section 27 of the Customs Act, if the duty was paid under protest. 14. On the other hand, reliance of the learned advocate on the Tribunal....