TaxTMI 
TaxTMI 
2020 (11) TMI 389
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....e services in the nature of software development, sales and marketing support, product replacement services and other support services to its affiliates. The Appellant had imported goods from related parties during the period April 2004 to June 2008 and had submitted Bills of Entry from time to time, which were assessed after loading the declared invoice value so as to make the value equal to 58 % of the global price list of the Appellant in terms of order dated August 26, 2004 passed by the Assistant Commissioner of Customs (Special Valuation Branch), New Delhi. The goods were, accordingly, cleared on payment of duty on the loaded value. 3. However, feeling aggrieved by the said order dated August 26, 2004, the Appellant filed an appeal before the Commissioner (Appeals), who by order dated August 20, 2007 remanded the matter to the Adjudicating Authority to assess the goods after verifying the data submitted by the Appellant and after complying with the principles of natural justice. 4. This time, the Assistant Commissioner of Customs by order dated April 23, 2009 ordered that the price may be enhanced to 46% of the global price list for the years 2000 to 2008. This order da....
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....owing 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 12.04.2010 is barred by limitation. 11. We find that there is no clear finding by the authorities below on the fact of duty having been paid under protest. Even the appellant has not been placed on record any documentary evidence to reflect upon the said effect. On going through the second proviso to section 27, we find that same clearly lays down that the limitation period shall not apply when any duty has been paid under protest. The second proviso nowhere restricts the limitation to passing of any order by the original adjudicating authority nor refers to any alternative date. It simiplicitor is to the effect that limitation will not apply when the duty has been paid under protest. Infact, we find that the 4th proviso to section 27 (1) is to the effect that where the duty become refundable as a consequence of judgment, decree, order direction of the appellant authority, Appellate Tribunal or any court, the limitation of one year or six months, as the case may be, shall be computed from the date of such judgment decree, ....
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....f the directions issued by the Tribunal it was necessary to decide whether the amount of duty was paid by the Appellant under protest and whether time limit stipulated under section 27 of the Customs Act would be applicable. These two issues were required to be decided on the basis of two parameters, namely, whether sufficient documentary evidence had been provided to substantiate the claim regarding payment of duty under protest; and whether filing of appeal before the higher authority itself would amount to duty paid under protest in the light of various judgments. 11. The findings recorded by the Commissioner (Appeals) on these two issues are reproduced below: "7. As regards the issue of evidence having been placed on record by the party to substantiate their claim at the relevant point of time that such duty was paid by them under protest, I find that the party has failed to place any such evidence on record from which it can categorically be deciphered that such amount of Customs Duty to the tune of Rs. 46,53,86,615/- was paid by them under protest. 8. On the contrary, vide their written submissions dated 19.08.2019, they have argued on the issue that SVB ....
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....asis supplied) 12. Shri B. L. Narasimhan learned Counsel appearing for the Appellant made the following submissions: (i) The refund claim is not barred by time as the differential duty was deposited under protest for the reason that filing of an appeal against the assessment order has to be considered as the payment of duty under protest. In this connection reliance has been placed on the following decisions: a) Mafatlal Industies Ltd. vs. Union of India 1997 (89) ELT 247 (SC) b) M/s Hutchison Max Telecom Pvt. Ltd. vs. CCE, Mumbai. 2004 -TIOL-62-CESTAT-DEL c) Bayshore Glass Trading Pvt. Ltd. vs. CCE, Kolkata 2002 (148) ELT 1243 (Tri.-Kolkata) d) M/s Parle Biscuits Pvt. Ltd. vs. Commissioner of Customs, Mumbai 2006-TIOL-439-CESTAT-MUM e) M/s Big Apple vs. CCE, Hyderabad 2011-TIOL-163-CESTAT-BANG f) RFB Rig Corporation LLC vs. CC (Air Cargo Complex), Chennai 2018 (359) ELT 219 (Tri.-Chennai) g) Commissioner Central Excise Commissionerate, Chandigarh-I vs. M/s Ind Swift Lands Ltd., 2017-(2)-TMI-23- Punjab and Haryana High Court; (ii) No time limit is prescribed for filing refund claims for duty paid un....
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.... related parties and had filed Bills of Entry which were assessed and duty was paid after loading the declared invoice value so as to make the value equal to 58% of the global price list of CISCO. Subsequently, after remand the declared price was enhanced to only 46% of the global price list for the years 2000-08. This order was accepted both by the Appellant and the Department. The reduction of the loaded price from 58% to 46% led to the filing of an application by the Appellant for refund of the excess duty paid for the period April 2004 to June 2008. This application which was filed on April 12, 2010 was rejected primarily for the reason that the Appellant had not submitted any evidence to substantiate that duty had been paid under protest and so the refund claim was barred by limitation under section 27(1) of the Customs Act. The appeal filed by the Appellant before the Commissioner (Appeals) was rejected but the Tribunal, in the appeal filed by the Appellant, remanded the matter to the Commissioner (Appeals). 17. The gist of the decision dated April 13, 2016 of the Tribunal is as follows:- (i) Section 27(1) of the Customs Act contemplates that a refund application ....
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.... was amended by addition of the fourth proviso. 19. To appreciate the rival contentions advanced on behalf of the parties, it would be appropriate to reproduce the relevant provisions of section 27 of the Customs Act: "Section 27- Claim for refund of duty.-(1) Any person claiming refund of any duty- (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, , if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs- (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the a....
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....vidence to support this contention, the second proviso would not apply and even otherwise, as the refund claim was not filed within six months from the date of the order dated April 23, 2009 passed by the Assistant Commissioner on remand, which is the period contemplated under fourth proviso to section 27 (1) of the Customs Act, the refund claim was barred by time. 24. Learned Counsel for the Appellant has submitted that the mode of protest against the payment of duty was by way of filing an appeal against the assessment order and if this is considered to be a protest, the limitation of six months provided for would not be applicable since the second proviso to section 27(1) of the Customs Act clearly stipulates that the limitation of six months shall not apply where any duty has been paid under protest. 25. The Constitution Bench of the Supreme Court in Mafatlal Industries Limited, in the context of section 11 B of the Central Excise Act, 1944, held that where a person proposes to contest the liability by way of appeal, revision or in the higher courts, he would naturally pay the duty under protest and it is difficult to imagine that a manufacturer would pay the duty without....
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....so to section 27 (1) of the Customs Act. 28. Thus, it has to be held that if an appeal is filed against an assessment order, then duty that is paid has to be treated as duty paid under protest and in that case the limitation of six months for filing a refund claim from the date of payment of duty, would not apply. 29. A Division Bench of Haryana High Court in M/s Ind Swift Lands Limited also considered the issue as to whether the application filed for refund of duty was barred by limitation under section 11B(1) of the Excise Act and observed as follows: "10. The second proviso furnishes a complete answer in favour of the assessee. It states that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty, has been paid under protest. Even assuming that the application fo refund of amounts paid in such circumstances, is to be made under section 11B(1), in the present case the application would not be barred by limitation as the amounts were paid under protest. The period of limitation, if any, therefore, would clearly be inapplicable to the assessee. It was not contended before us that any other period of limitation applies and th....
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.... Bench of Supreme Court in Mafatlal Industries clearly held that where a person proposes to contest his liability by way of appeal, he would naturally pay the duty under protest and it is difficult to imagine that duty would be paid without protest even when he contest the levy of duty. This apart, a Division Bench of the Madras High Court in Commissioner of C. Ex. Chennai-II vs. Electro Steel Castings Limited 2014 (299) ELT 305 (Mad.) followed the Constitution Bench judgment of the Supreme Court in Mafatlal Industries and held that the limitation period for filing a refund claim would not be applicable if an appeal has been filed since it would be a case where duty has been paid under protest. The relevant portion of the judgment is reproduced below: "5. Thus, the determination of substantial question of law involved herein depends upon the question of limitation to make any refund claim, which inturn depends upon the mode of payment of duty under protest or not under protest? While according to the Revenue, the payment of duty is without any protest, the assessee's categorical stand is that it is deemed to be paid under protest. 6. Both the Revenue and assessee ....