2017 (7) TMI 219
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....onsequent to ONGC declining issue of recommendatory letter, appellant approached the Hon'ble High Court of Delhi in C.W.No.4180/2002 who vide interim order dt. 30.07.2002 inter alia ordered that " ..in case the petitioners are willing to get their consignment of spare parts released, they may do so by paying the customs duty as demanded, of course under protest and subject to orders in this petition ..". In pursuance to High Court's order, ONGC issued recommendatory letters and accordingly, DGH also issued Essentiality Certificates to the appellant. Vide Final Order dt. 11.3.2003, the Hon'ble High Court of Delhi disposed of the writ petition filed by the appellant inter alia directing the Customs authorities to consider and disp....
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....f of the appellants submits that the interim order dt. 30.07.2002 of Hon'ble High Court of Delhi had clearly ruled that, as an interim measure, they could get the consignment of spares released by paying customs duty under protest and subject to orders in the petition filed by them. 2.2 Ld. Advocate also takes me to para-8 of the order dt. 04.06.2015 of the original authority where the authority has in the discussion and findings, has observed that "The crux of the issue in this case revolves around vacating the protest in respect of 28 Bills of Entry .". 2.3 Ld. Advocate also draws my attention to para-13 of the same order where the authority has observed that " ..the clearances of goods by the importer under 28 Bills of Entry has to....
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....hould be treated as duty paid under protest. 2.7 He further contends that when the adjudicating authority has found no issue of limitation in respect of refund claims relating to 15 Bill of Entry, there cannot be a different treatment for the remaining 13 Bills of Entry. 3.1 On the other hand, Ld. A.R Shri B. Balamurugan appearing for Revenue opposes the appeal and supports the impugned order. He also made further oral submission, which could be broadly remained as under: i) Although the interim order of Delhi High Court allowed the appellant to clear goods on payment of duty under protest, no protest was lodged for the imports in Chennai. ii) The appellants have not sought for any provisional assessment iii) As observed by Commissione....
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....Revenue is that appellant had not lodged any protest for the imports in Chennai, nor, had they sought for provisional assessment and that benefit of Notification No.21/2002-Cus., also was not sought by them. 5.4 It is not disputed that the appellant approached the High Court of Delhi against the ONGC s decision to decline issuance of letters of recommendation for the Essentiality Certificates required for claiming exemption under Customs Notification No.21/2002. Notwithstanding the protestations, of Ld. A.R, I find from the Order-in-Original dt. 28.02.2006 of the first round of adjudication, at page 77 of the appeal papers, that the adjudicating authority therein has categorically stated in para-2 of his order that the importer had sought ....
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....y have to be treated, as directed by the court, to be under protest and subject to final orders in that petition. There can then be no question of final assessment in the matter by Customs authorities till the C.W. 4180/2002 dt. 30.07.2002 has been finally disposed and the protest vacated. 5.7 Ld. Advocate has also correctly cited the clarification of the Hon'ble Apex court in para-86 of their judgment in Mafatlal Industries case (supra) that when the duty is paid under the orders of Court (whether by way of an order granting stay, suspension, injunction or otherwise) pending an appeal/reference/writ petition, it will certainly be a payment under protest; in such a case, it is obvious, it would not be necessary to lodge the protest as prov....