TaxTMI 
TaxTMI 
2025 (11) TMI 134
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....Appellant claimed exemption from the payment of additional customs duty ("CVD") under the Customs Tariff Act, 1975 read with Notification No. 30/2004-C.E. dated 09.07.2004.The Customs Department disputed such claim on the ground that the condition stipulated in the proviso contained in the said notification that no Cenvat credit of the duty paid on the inputs should have been taken by the manufacturer under the provisions of the Cenvat Credit Rules 2004 was not capable of being satisfied in respect of imported goods. On the other hand, the appellant's contention was that since the goods imported by it were manufactured outside India, the question of availing of Cenvat credit on the inputs under the provisions of the Cenvat Credit Rules 2004 did not arise and as such the condition stood fulfilled. 2.1. Since the Customs Authorities were unwilling to clear the consignments without payment of CVD, the appellant decided to pay the duty 'under protest' and submitted a letter of protest dated September 4, 2004 to the Deputy Commissioner of Customs, New Custom House, IGI Airport, New Delhi, where the dispute first arose. In the said letter, the appellant indicated that it would not pas....
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....1,13,097 pertained to an import made under a bill of entry dated October 28, 2006. The rest of the amount pertained to the period from July 2008 to December 2013. One of the enclosures submitted by the appellant with the said refund claim was a Chartered Accountant's certificate to the effect that the said sum of Rs.1,40,33,559 had been shown under "loans and advances"; that it was not inbuilt in the sale price of the garments and that the burden thereof had not been passed on to anyone. 2.6. By a letter dated March 15, 2016, the Assistant Commissioner returned the original application along with all enclosures since according to him there was no judgment/decision passed by the Hon'ble Supreme Court where the Assistant Commissioner, LCS Jogbani/Department was the respondent. By a letter dated May 27, 2016 the appellant drew the attention of the Assistant Commissioner to the judgment dated March 26, 2015 of the Hon'ble Supreme Court. The appellant stated that the Department was represented by the Commissioner of Customs (Import and General), New Delhi in the proceedings before the Hon'ble Supreme Court and was bound by the aforesaid judgment. The appellant resubmitted its refund ....
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.... nature of the judgment dated March 26, 2015 of the Hon'ble Supreme Court and the maintainability of the refund application in respect of CVD paid at LCS, Jogbani within one year of the said judgment.. Thus, the appellant submits that the refund application filed by them within one year from the date of date of the Supreme Court ruling on 26.03.2015, cannot rejected as barred by limitation. 3.2. The appellant further submits that duty payments were made "under protest" and hence, the question of time bar does not arise. In this regard, the appellant submits that the dispute with regard to leviability of CVD arose for the first time in September 2004 in respect of an import consignment dealt with by the New Delhi Customs authorities resulting in submission of the protest letter dated September 4, 2004. By the said letter, the appellant made clear its intention to pursue the matter in appellate proceedings in the event of an adverse adjudication. The appellant stated that it would not pass on the incidence of the duty and would claim refund in the event of success. In view of the categorical stand taken by the appellant at the very inception, there can be no doubt that it had not ....
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....treated as provisional, if the protest is not vacated by holding that duty payment at the time of clearance was correct. In the instant case, the authorities at LCS, Jogbani did not pass any reasoned/speaking order vacating the protest. As such, the assessments were provisional and not final and it was not necessary to separately prefer any appeal against such provisional assessments in order to obtain refund. When the assessments would have been finalised in accordance with the law laid down by the Hon'ble Supreme Court by its judgment dated March 26, 2015, it would have been incumbent upon the authorities to grant consequential refund to the appellant. In such cases, the decisions of the Hon'ble Supreme Court in Collector v Flock (India) Pvt. Ltd., 2000 (120) ELT 285 (SC), Priya Blue Industries Ltd. v Commissioner, 2004 (172) ELT 145 (SC) and ITC Ltd. v Commissioner, 2019 (368) ELT 216 (SC) have no application. In this regard, reliance is placed on the decision of this Tribunal in the case of Commissioner of Customs Kolkata (Preventive) v. M/s. Raymond Apparel Limited [Customs Appeal No. 75200 of 2023 decided on 02.05.2024 - Para 10.1, 11 to 11.3] 3.5. Similar rulings have bee....
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....appellant before selling the goods to the consumers like, freight, distribution charges, packaging and labelling charges, administrative charges etc. 3.9. The appellant submits that non-availability of original copies of TR-6 Challans is merely a hyper technical objection and refund cannot be denied on such ground. It is a settled principle that even if original TR-6 challans are not available, the assessee cannot be denied refund when payment of duty can be verified from the Department's records. In this regard, reliance is placed on: * The Commissioner of Customs, Cochin v. M/s Shree Simandar Enterprises [2012- TIOL-624-HC-KERALA-CUS * Hindustan Colas Ltd v. Commissioner - 2019 (10) TMI 1156 * Sambhav Enterprises v. Commissioner - 2011 (265) ELT 113 (Tri-Bang) 3.10. The appellant submits that just like the OIO, the OIA was also passed ex-parte in gross violation of principles of natural justice without providing adequate opportunity to the Appellant to present its case. 3.11. In view of the above submissions, the appellant prayed for setting aside the impugned order and allow the Refund Application dated 08.03.2016 filed by the Appellant. 4.....
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....ognised the applicability and binding nature of the judgment dated March 26, 2015 of the Hon'ble Supreme Court and the maintainability of the refund application in respect of CVD paid at LCS, Jogbani within one year of the said judgment. Thus, we observe that the refund application filed by the appellant within one year from the date of date of the Supreme Court ruling on 26.03.2015, cannot rejected as time barred. 6.1. We observe that duty payments were made "under protest" and hence, the question of time bar does not arise. We observe that the dispute with regard to leviability of CVD arose for the first time in September 2004 in respect of an import consignment dealt with by the New Delhi Customs authorities. As the customs authorities have not extended the benefit of exemption from the payment of CVD under the Customs Tariff Act, 1975 read with Notification No. 30/2004-C.E. dated 09.07.2004, the appellant paid the duty under protest by submitting letter dated September 4, 2004. By the said letter, the appellant made their intention clear to pursue the matter in appellate proceedings in the event of an adverse adjudication. In view of the categorical stand taken by the appell....
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.... compulsion it is under protest even within the meaning of these words in the second proviso to Section 11B(1) of the Act which we will refer to shortly." 6.3. We also observe that the refund claims filed by the appellant has been rejected on the allegation that, with the introduction of self-assessment procedure in the year 2011, those Bills of Entry filed prior to 08.04.2011 were not challenged by the importer, and hence the same attained finality. Therefore, it was held in the impugned order that the refund application for the period before 08.04.2011 was not maintainable. In this regard, we observe that where the duty is paid under protest, it is a case of provisional assessment which does not have to be separately challenged for obtaining refund. It is a fact on record that the appellant had made payment of CVD under protest. It is a settled principle that when duty is paid under protest, the assessment is required to be treated as provisional, if the protest is not vacated by holding that duty payment at the time of clearance was correct. In the instant case, we observe that the authorities at LCS, Jogbani did not pass any speaking order vacating the protest. As such, we h....
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.....2. The Ld. Commissioner (Appeals) has examined all these issues in the impugned orders in detail and observed as under (as extracted from Order-in-Appeal No. KOL/CUS(CCP)/AKR/284/2022 dated 16.06.2022) : - "10. Further, I have noticed that the department has accepted that in 174 nos. of Bill of Entry, the duty was paid under protest. The Reviewing Authority has also accepted this aspect and nowhere disputed the same. He observed that even if duty was paid under protest, the respondent is still require to file appeal against such Bills of Entry following the ratio of judgment of ITC Ltd. v. CCE, Kolkata -IV, 2019- VIL- 32- SC-CU. I find that this is the crux of the matter to decide if duty is paid under protest whether the ratio of decision in the matter of ITC Ltd. v. CCE, Kolkata -IV, 2019- VIL 32-SC-CU is applicable or otherwise. 11. I find that once the duty is paid under protest, the assessing authority is under obligation to pass a speaking order on the assessment of bill of entry and the Bill of Entry can be said to have attained finality as protest has to be vacated by passing of a reasoned speaking order. Since the department has accepted that the duty wa....
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....ry. The decisions of the Apex Court in Collector v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.). Priya Blue Industries Ltd v. Commissioner - 2004 (172) E.LT 145 (S.C.) and the decision of the Larger Bench in Commissioner of Customs (Import), Nhava Sheva v. Eurotex Industries & Exports Ltd - 2007 (216) ELT. 137 (Tri-LB) holding that refund claim is not maintainable, in the absence of any challenge to the assessment order do not relate to cases where the duty has been paid under protest. In these circumstances and also for the reason that the Commissioner (Appeals) rejected the appeals of the importers on a ground not raised in the appeal filed before him by the importers, I set aside the impugned order and remand the case to the adjudicating authority to consider the case laws relied upon by the importers, to the effect that payment of duty under protest (it is admitted that the appellants herein paid duty under protest) itself amounts to a challenge to the assessment of the Bill of Entry and if this submission found acceptable, then to consider the evidence brought on record by the importers to rebut the legal presumption that duty burden has been passed on by them to th....
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....see pays duty under protest, it indicates a challenge by him on the demand of duty made by the department. Therefore it is for the department to pass appropriate assessment order considering the protest made by the assessee. In the present case, the decision of the Hon'ble Supreme Court in the case of ITC Ltd. Vs. Commissioner of Central Excise, Kolkata reported in 2019 (368) ELT 216 (SC) would not apply. The impugned order is set aside and the appeal is allowed by way of remand to the adjudicating authority who shall consider the refund claim on merits and pass orders. (emphasis supplied)." 14. In the case of COMMISSIONER OF CUSTOMS VERSUS M/S. SAKTHI SUGARS LTD. (Customs Appeal No. 247 of 2011, Final Order No. 40175/2020 dated 29.01.2020) [2020 (4) TMI 840); Hon'ble CESTAT CHENNAI has also held as below:- '7. The first issue that arises for consideration is whether decision in the case of Priya Blue Industries (supra) and ITC Ltd. (supra) would apply to the facts of this case. Ld A.R has argued that since respondent has not requested for reassessment of the Bill of Entry, they are not eligible for refund. It is not disputed that the respondents ....
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....ssioner (Appeals) in the impugned order and hold that as there was a protest, duty was paid under protest, by the respondent. Therefore, the refund claims cannot be held as barred by the limitation and cannot be rejected on the ground that the refund claims were filed without challenging the assessment as assessment was not final." 6.5. We observe that similar ruling have been passed in the case of HDFC Bank v. Principal Commissioner of GST & Central Excise [2020 (7) TMI 362 CESTAT Chennai, when it has been held as under: "After hearing the submissions and on perusal of records, we find that the appellant has paid duty under protest. Whenever an assessee pays duty under protest, it indicates a challenge by him on the demand of duty made by the department. Therefore it is for the department to pass appropriate assessment order considering the protest made by the assessee. In the present case, the decision of the Hon'ble Supreme Court in the case of ITC Ltd. Vs. Commissioner of Central Excise, Kolkata reported in 2019 (368) ELT 216 (SC) would not apply. The impugned order is set aside and the appeal is allowed by way of remand to the adjudicating authority who shall c....
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....ion in the case of The Commissioner of Customs, Cochin v. M/s Shree Simandar Enterprises [2012-TIOL-624-HC-KERALACUS, wherein it has been held as under: "9. The reasons put forward by the petitioner in the review petition justifying the insistence on the production of original documents also does not impress me at all. When an import is assessed to duty and penalty and fine are imposed, necessarily, the assessing authority maintains a file in relation to the same, which will contain all the documents in original relating to the levy. When payment is made pursuant to the orders of the assessing authority, details of the same would also be avallable in that file. When appeal is filed by the importer against the orders of the assessing authority the file will contain orders and details relating to the same also. Therefore, there is no difficulty for the assessing officers to decide the claim for refund based on those documents, when the appeal is allowed in full or in part. When payment as per the adjudication order is known to the assessing authority, refund as per the appellate order is the duty of the assessing authority. The assessing authority cannot retain the amount du....
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....he petitioner in the writ petition had not challenged the order dismissing the refund application, the petitioner in the review petition is not liable to make the refund at all, which contention was not even taken in the review petition in so far as the review petition was confined to the question of necessity to produce documents as condition for making the refund. That adds to the unreasonable stand of the petitioner in the review petition. Since that question does not arise in the review petition, I am not inclined even to consider the same. Even otherwise, insofar as the refund became due as per an appellate order, the petitioner cannot, under law, deny the benefit of the appellate order by passing another order rejecting the refund, especially when the petitioner in the review petition himself admits that the refund is not a refund as contemplated under Section 27 of the Customs Act, orders in respect of which alone an appeal would lie. Even otherwise, admittedly, that order was not served on the petitioner and has been returned by the postal authorities." 6.9. Regarding the rejection of the refund claim on the ground of 'unjust enrichment', we find that when the appellant ....