TaxTMI 
TaxTMI 
2023 (2) TMI 76
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....he respondent prevailing before the Commissioner of Customs (Appeal); the benefit of reduction of duty was denied to the respondent on the ground that its application for refund was beyond the period of limitation. It is the Revenue's case that since the duty was initially paid on the enhanced value without protest, the respondent's claim for refund, which was made beyond the period of one year from the date of payment of duty, is barred by provisions of Section 27(1) of the Customs Act. 3. The respondent claims that it had paid the customs duty under protest and the same was evident from the fact that it had preferred an appeal challenging the enhancement of the value of the goods and consequentially the demand of additional custom duty. Thus, it is entitled to the benefit of second proviso to Section 27(1) of the Customs Act, which expressly provides that the limitation of one year, as prescribed under Section 27(1) of the Customs Act, would not apply when any duty or interest has been paid under protest. 4. The learned Tribunal following the decision of the Constitution Bench of the Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India: 1997 (89) ELT 247 (SC)....
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....pealed against the order dated 31.08.2010 rejecting its claim for refund before the Commissioner of Customs (Appeals). However, the respondent was unsuccessful and the said appeal was rejected by an order dated 07.02.2011. 6.6 Aggrieved by the aforesaid order, the respondent preferred an appeal before the learned Tribunal, which was allowed by an order dated 13.04.2016 [Final Order No. C/A/51232/2016-CU(DB)]. In terms of the aforesaid order, the learned Tribunal set aside the order dated 31.08.2010 passed by the Adjudicating Authority as well as the order dated 07.02.2011 passed by the Commissioner of Customs (Appeals) and remanded the matter to the original Adjudicating Authority. 6.7 In compliance with the orders passed by the learned Tribunal, the Adjudicating Authority once again considered the respondent's claim for refund and rejected the same by an order dated 02.08.2017. The respondent appealed against the said decision by filing an appeal before the Commissioner of Customs (Appeals), however, the same was rejected by an order dated 22.08.2019. 6.8 Aggrieved by the said order dated 22.08.2019, the respondent filed an appeal before the learned Tribunal which was allowed i....
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....rder: Provided also that where the duty becomes refundable as a consequence of judgment, decree, order or direction of the appellate 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. Explanation -For the purposes of this sub-section, "the date of payment of [duty and interest, if any, paid on such duty], in relation to a person, other than the importer, shall be construed as "the date of purchase of goods" by such person. Explanation II-Where any duty is paid provisionally under section 18, the limitation of one year or six months, as the case may be, shall be computed from the date of adjustment of duty after the final assessment thereof." 8. According to the appellant, the fourth proviso to Section 27(1) of the Customs Act - which stipulates that in case refund is due as a consequence of a judgement, decree, order or direction of the appellate authority, the period of limitation is required to be computed from the date of the judgement, decree or order as the case may be - is applicable. Thus, the application for refund was required to be ....
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....ll not apply where any duty or interest has been paid under protest. PROVIDED ALSO that where the amount of refund claimed is less than rupees one hundred, the same shall not be refunded. Explanation: For the purposes of this sub-section, "the date of payment of duty or interest" in relation to a person, other than the importer, shall be construed as "the date of purchase of goods" by such person." 11. In the aforesaid context, the only issue to be addressed is whether filing of an appeal against the Order-in-Original dated 25/26.08.2004 while at the same time paying the duty on the enhanced value, would amount to paying the same under protest. 12. The respondent claims that it was obvious that the additional duty was paid under protest as the respondent had appealed the Order-in-Original dated 25/26.08.2004 enhancing the declared value of the goods resulting in the increase in custom duty. The Revenue contends that since no formal protest had been lodged while paying the duty, the benefit of second proviso to Section 27(1) of the Customs Act is not available to the respondent. 13. It is difficult for this Court to accept that the payment of custom duty imposed pursuant to....