TaxTMI 
TaxTMI 
2025 (5) TMI 87
X X X X Extracts X X X X
X X X X Extracts X X X X
....f stock lot paper rolls and aluminium foils backed with papers. Subsequently, the appellant received another show cause notice dated 21.05.2012 with respect to the paper rolls imported by the appellant. During the course of investigation, the appellant, out of compulsion deposited an amount of Rs.5,00,000/- through TR-6 challan No.03/2010-11, dated 27.09.2010 and Rs.2,50,460/- vide TR-6 challan No. IMP/44/2012, dated 25.06.2012. 2.1 The show cause notice dated 13.09.2011 was adjudicated by the Adjudicating Authority vide Order-in-Original dated 31.10.2012 and he confirmed the demands against the appellant and imposed a penalty of Rs.5,00,000/. The appellant challenged the Order-in-Original dated 31.10.2012 before the appellate authority who vide Order-in-Appeal dated 19.12.2013 allowed the appeal with consequential relief. Similarly, the show cause notice dated 21.05.2012 was adjudicated by Order-in-Original dated 22.03.2013, whereby the demands raised against the appellant were confirmed and a penalty of Rs.8,74,450/- was imposed upon the appellant. The appellant challenged the Order-in-Original dated 22.03.2013 and the appellate authority, vide Order-in-Appeal dated 10.09.2013....
X X X X Extracts X X X X
X X X X Extracts X X X X
....laim is in teeth of the Order-in-Appeal passed in the earlier round of proceeding allowing the appeal filed by the appellant with consequential relief. It was further submitted that once the adjudication order is set aside, the appellant is entitled to a refund of the amount paid during investigation, as withholding the refund on the ground of limitation undermines the finality of the appellate order, which has conclusively determined the appellant's non-liability for the amounts initially demanded. 3.3 The learned Counsel for the appellant cited M/s Jalan Con Cast Ltd vs. Commissioner of Central GST & Central Excise, Varanasi, (Excise Appeal No.70696/2021, CESTAT Allahabad, Final Order No.70022/2024) in which Order-in-Original through which an amount of Rs.30,00,000/- was appropriated and penalties were imposed on the appellant was set aside and appeal was allowed. Appellant filed refund application for refund of Rs.30,00,000/- which was allowed by the first Adjudicating Authority but rejected during appeal by the Revenue against the said order. It was held that since the payment of Rs.30,00,000/- was made under protest, the same does not bear the character of duty/ tax and the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly 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 interest, has not been passed on by him to any other person. (1B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely: * (a) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 25, the limitation of one year shall be computed from the date of issue of such order; * (b) w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of reassessment. Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal, National Tax Tribunal or any Court or in any other provision of this Act or the regulations made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oner of Customs (Appeals) has upheld the order of the lower Adjudicating Authority dated 03.06.2014. There is no error or illegality in the impugned order dated 05.03.2015 passed by the Commissioner of Customs (Appeals). Therefore, the appeal may be dismissed and the impugned order passed by the Commissioner of the Customs (Appeals) may be upheld. 5. I have heard the learned Counsel for the appellant and learned Authorised Representative for the department and perused the records. 5.1 From the perusal of the record, it comes out that the appellant filed a refund claim dated 05.03.2014 amounting to Rs.7,50,460/- under Section 27 of the Customs Act, 1962. As the Orders-in-Appeal dated 19.02.2013, 30.04.2013 and 10.09.2013 were passed by the Commissioner (Appeals) in their favour. The Directorate of Revenue Intelligence Regional Unit, Surat searched the appellant's premises and godown from 15.09.2010 to 17.09.2010 and seized the goods paper rolls (Customs Tariff Head 48119099) imported at inland container depot Dashrath under Bills of Entry No.484 dated 25.06.2010 (27170 Kgs of paper rolls) and 2254746 dated 14.10.2010 (23390 Kgs of stock lot of foil paper roll) allegedly at hig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pellant and penalty of Rs.4,00,000/- was imposed on the partner of the appellant. Aggrieved from the Order-in-Original the appellant filed an appeal before Commissioner (Appeals) which was decided by vide Order-in-Appeal dated 10.09.2013 wherein, the Commissioner (Appeals) set aside the impugned order and accepted the declared value for the purpose of assessment and allowed both the appeals with consequential relief. The department did not accept the abovementioned Order-in-Appeal dated 10.09.2013 and filed an appeal No. C/14016/2013 with the CESTAT on 11.12.2013 which is still pending and no stay order has been obtained from CESTAT. Thereafter, the appellant applied for a refund of Rs.7,50,460/- by clubbing Rs.5,00,000/- and Rs.2,50,460/-. It is pertinent to mention here that for an amount of Rs.5,00,000/- the Order-in-Appeal was issued on 23.02.2013 and the refund was claimed on 05.03.2014 which is time barred as per Section 27 (1B) (b). Amount of Rs.2,50,460/- was nowhere appropriated in the show cause notice or in the Order-in-Original. The refund claim was decided by the Order-in-Original dated 03.06.2014 wherein, Adjudicating Authority sanctioned the refund of Rs.2,50,460/- a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the refund claim pertains to the amount deposited during the course of investigation which was subsequently confirmed by the adjudicating authority. The appellant challenged the said adjudication order and the appeal was allowed in favour of the appellant, thus it cannot be said that refund is time barred. 6.3 The appellant has relied upon the following case laws :- (a) Jyoti Udyog Limited vs. Principal Commissioner of Customs, Noida (2024) 19 Centax 320 (Tri.-All) (b) Ratan Textiles Pvt. Limited vs. Commissioner of Customs, Noida (2024) 19 Centax 442 (Tri.-All) (c) Duggar Fibre Pvt. Limited vs. Commissioner of C. EX., CUS. & CGST, Delhi 2021 (378) E.L.T. 293 (Tri. -Del.) (d) ITC Limited vs. Commissioner of Customs (Sea), Chennai-II 2018 (8) G.S.T.L. 418 (Tri-Chennai) (e) Commissioner of C. EX. & Service Tax, Bhavnagar vs. HK Dave Limited - 2015 (38) S.T.R. 77 (Tri. - Ahmd.) (f) Gujarat Engineering Works vs. Commr. of C, EX., Ahmedabad-II - 2013 (292) E.L.T. 547 (g) Mangalam Cement Limited vs. Commissioner of Central Excise, Jaipur 2011 (24) S.T.R. 699 (Tri. -Del.) (h) Opel Alloys Pvt. Limited vs. Comm....