TaxTMI 
TaxTMI 
2020 (11) TMI 389
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....ent, 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 dated April 23, 2009 was accepted by both the Appel....
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....art 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, order, or direction. However, we note that the said proviso is applicable only when the refund....
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.... 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 Order dated 26.08.2004 was challenged by way of an appeal implies that all the duties paid during pendency of such appellate proceeding....
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....he 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 under protest. The second proviso to section 27(1) of the Customs Act categorically provides that the time limit under section 27(1) shall not apply where duty has been paid under protest; and (iii) Even with the insertion of the fourth proviso to section 27(1) of the Customs Act with ....
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....h 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 has to be filed before the expiry of six months from the date of payment of duty by the assessee; (ii) However, in view of the provisions of the second proviso to section 27(1) of the Customs Act, this limitation of six months shall not apply where the duty has been paid under protest; (iii) There is no clear finding by the Adjudicating Authority....
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....n 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 amount of duty and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: xxxxxxxxxx Provided further that the limitation of one year or six months, as the case may be, shall not apply where any duty and interest, if any, paid on such duty has been paid under protest: xxxx....
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.... 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 protest even when he contests the levy of duty. Paragraph 83 of the judgment, which deals with this aspect, is reproduced below: "83.It is then pointed out by the learned Counsel for the petitioners-appellants that if the above interpretation is placed upon amended Section 11B, a curious consequence will follow. It is submitted that a claim for refund has to be filed within six months from the relevant date according to Section 11B and the expression "relevant date" has been defined in Clause ....
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.... 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 that under such a provision, the claim would be bared nevertheless. An act, including a payment can be made under protest in several ways. For the act to be under protest, it is not necessary that it be accompanied by the very words "under protest" whether an act is performed under protest or not must be determined on the basis on which it is performed, if the conduct indicates that it is not voluntary and is done out of compulsion it is under protest even within the meaning of these words in the second proviso to section 118 (1....
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....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 relied on the same decision of the Apex Court in the case of Mafatlal Industries Ltd. reported in 1997 (89) E.L.T. 247 (S.C.) in respect of their respective contentions whether the refund claim was made under protest or not. 7. Though it is sought to be contended on the side of the Revenue that the decision of the Supreme Court in the case cited above is more applicable to the case of the Revenue, we are not inclined to accept the same. The Apex Court in para 83 under an identical situation, dealt with the same issue, wherein also payment was made, when the as....