TaxTMI 
TaxTMI 
2024 (2) TMI 320
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....y amount of Rs.25,27,89,159/- i.e. nearly 20 months after the date of the Tribunal final order. The amount was initially paid by the importer M/s. ICICI Bank 'under protest' vide letter dated 16-Jun-2008 on behalf of the appellant (buyer) towards 'gold and silver medallions' imported vide bill of entry dt. 03-Jul-2007. After due process of law, the original authority rejected the refund claim on the ground of time-bar and on the ground of unjust enrichment. In appeal, the Commissioner (Appeals) upheld the adjudication order and rejected the appeal of the appellant on the ground of time bar. Hence the appellant is now before the Tribunal. 3. The learned Counsel Shri P.R. Renganath appeared for the appellant and learned Smt. Anandalakshmi Ganeshram, AC (AR) appeared for the Revenue. 3.1 The learned counsel for the appellant after recapitulating the facts in issue, stated that it is well settled that where duty has been remitted under protest, limitation does not apply, as held in a number of cases. This is on the basis, inter alia, that, section 27(1B) which mentions a limitation of one year from the date of a court/tribunal order for filing a refund claim, is excluded by the s....
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....as been made before the date on which the Finance Bill, 2011 receives the assent of the president, such application shall be deemed to have been made under sub-section (1), as it stood before the date on which the Finance Bill, 2011 receives the assent of the President and the same shall be dealt with in accordance with the provisions of sub-section (2): Provided further that the limitation of one year shall 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. (1A) The application under sub-section (1) 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 or interest, in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty or inter....
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....the case of Cherukuri Kutumbayya Vs The Municipal Council [AIR 1959 AP 1], which held as under; "5. The point for determination is whether the appropriate provision of law is Section 81(2) or 81(4). The answer to this must depend upon the construction we put on Section 81(2) and (4). Section 81(2) enacts: "Save as otherwise provided in this Act, these taxes shall be levied at such percentages of the annual value of lands or buildings or both as may be fixed by the Municipal Council, subject to the provisions of Section 78." Section 81(4) is in these words: "The Municipal Council may, in the case of lands used exclusively for agricultural purposes, levy these taxes at such proportions as it may fix of the annual value of such lands as calculated in accordance with the provisions of Section 79 of the Madras Local Boards Act, 1920." 6. The expression "save as otherwise provided" in Sub-section (2) means 'except to the extent specific provision is made'. In other words, Sub-section (2) will come into play only in cases which are not governed by any other specific provisions of law. Therefore, it is only where there is no other special provis....
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.... binding force, even if the order passed is felt to be not legal and proper by the either of the rival parties. A seven judge Bench of the Hon'ble Supreme Court in Smt. Ujjam Bai v. State of Uttar Pradesh, [(1961) 1 SCR 778] held as under: 'A taxing authority, which has the power to make a decision on matters falling within the purview of the law under which it is functioning is undoubtedly under an obligation to arrive at a right decision. But the liability of a tribunal to err is an accepted phenomenon. The binding force of a decision which is arrived at by a taxing authority acting within the limits of the jurisdiction conferred upon it by law cannot be made dependent upon the question whether its decision is correct or erroneous. For, that would create an impossible situation. Therefore, though erroneous, its decision must bind the assessee.' 12. After an order is passed it either attains finality or can be taken up in further appeal as provided for in law. The doctrine of merger which is a common law doctrine recognized by Courts on principles of propriety in the hierarchy of the justice delivery system protects the assessee's claim for refund as per section 27(1B)....
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....tion then is from which date will the period of limitation start to run? It appears on the basis of the paragraph of Mafatlal Industries decision which has been relied upon by the Tribunal it would have to be from the final decision in the assessee's own case. 15. In the impugned case the matter reached a finality after the Tribunal's Final Order No. 40506 to 40510/2013 dated 04.11.2013 came to be accepted by the rival sides and was not further appealed against. Hence the matter has become final. The protest which stood vacated by an order of the lower authority is of no consequence to the limitation of time at this point of time as the order has merged with that of the superior authority i.e. the order of the Tribunal. The appellant filed the impugned refund claim dated 08/07/2015 i.e. after a delay of about 20 months from the date of the order. Hence even, though the payment of duty by the importer was initially made under protest, the refund claim is clearly time barred in terms of Section 27(1B)(b) of the Customs Act, 1962. 16. We find that a similar matter came in for consideration before a coordinate Bench of this Tribunal in M/s Redington India Ltd Vs Commissioner Of C....