TaxTMI 
TaxTMI 
2026 (8) TMI 810
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....puting the classification of impugned goods under CTI 34024200, the appellants have paid duty of Rs.3,92,942/- under Protest in order to avoid litigation, interest and penalty, if any, that may be fall upon them, should the Department issue a SCN to them also; after due verification regarding the designated signatory in Singapore, who signed the Form-AI and after according an opportunity of personal hearing on 03.08.2023, impugned OIO was passed classifying the goods under CTI 34024200. 2.1. The appellants challenged the OIO by an appeal dated 14.11.2023 and filed an appeal addressed to Commissioner (Appeals), Central Excise, Customs & Service Tax, Ludhiana; however, inadvertently, submitted the appeal papers to the Commissioner of Customs, ICD, GRFL, Sahnewal, G.T. Road, Ludhiana; as the appellants have not heard anything from the Department even after multiple inquiries, they addressed a letter dated 05.06.2025 to the Commissioner of Customs, Sahnewal to grant a personal hearing; vide letter dated 18.07.2025, Commissioner of Customs (Appeals), Rishi Nagar informed the appellants that no appeal appears to have been filed by the appellant in their office; the appellants received....
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.... 1 B/e no. 5968284 dated 16.05.2023, the final assessment is still pending; in respect of 1 B/e bearing no. 6162828, order passed by appellate authority i.e. Commissioner (Appeals) is under challenge before this Bench in C/60002/2026. 3.2. The Appellant filed a refund application, dated 22.10.2024, seeking refund of Rs.5,44,02,175/- paid under protest. Deputy Commissioner passed order in original, dated 21.12.2004, rejecting the claim without adjudicating the application on the ground that the refund claim filed by the Appellant was pre-mature and holding that the refund claim can only be filed in case the Appellant challenges the assessment done by appraisement section before appellate authority and the same is allowed by the authority in favour of the Appellant and the Bills of entry are re-assessed to that effect. 3.3. The Appellant filed an appeal, on 19.02.2025, before Commissioner (Appeals), within the statutory time period of 60 days, through e-mail at [email protected] and sent the through speed post on the same day. The Appellate Authority issued a letter, dated 15.04.2025, seeking explanation from Appellant as to whether the appeal was filed within the sta....
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....nder 3402 only if it is soluble in water; however, documents/ reports detailed below indicate that the impugned goods are not water soluble and therefore, they have to be classified under CTH 3824. (i) Lab report dated 27.04.2022 by M/S Fare Labs Pvt Ltd. (ii) Expert opinion of Institute of Chemical Technology dated 13.03.2023 (iii) Test report dated 07.03.2023 issued by CRCL, on B/e no. 4266750 dated 20.01.2023 and Test reports dated 01.08.2024 by CRCL (iv) Order dated 31.12.2021 in the case of Godrej Industries Ltd. passed by Commissioner of Customs Nava Sheva-I. (v) Ruling in the case of Shell Eastern Petroleum (Pte) Limited by Singapore Customs Department. 6. Learned counsel submits, in addition, that Revenue was required to follow the order passed by Commissioner of Customs, Nhava Sheva in respect of M/s Godrej Industries Ltd; Revenue cannot take a different opinion at the same time in respect of different bills of entry. He also submits that classification of the impugned goods, cannot be decided on the basis of a test report in respect of goods imported another bill of entry i.e. No.5263997 dated 01.09.2021. He relies on the fo....
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....toms Department under CTI 38249900 allowing exemption/concessional rate on BCD; Appellate Authority has misinterpreted and wrongly applied the ratio laid down by the Hon'ble Supreme Court. 10. Learned Counsel for the appellant submits also that in the instant case, Deputy Commissioner has finally assessed all BOEs except BOE no. 5968284 dated 16.05.2023 (Sr. no. 44) and classified the Impugned Product under Customs Tariff Entry 38249900. As declared by the appellant; thus, benefit of entry no. 449 of Notification 46/2011-Customs dated 01.06.2011 (for imports from Thailand & Singapore) and concessional rate of BCD @ 7% in terms of entry no. 486 of Notification No. 50/2018-Customs dated 30.06.2018 (for import of goods from China) have been extended to the appellant and thus, there was no need to challenge the above stated finally assessed B/e by the Appellant. 11. Learned Counsel for the appellant submits further that the onus lies on the Customs Department to vacate the protest and the assessee cannot be put to disadvantage if Department fails to do so. He relies on Raymond Apparel Limited [2024 (6) TMI 310]-CESTAT Kolkata [2025 (8) TMI 421]- Calcutta High Court] and Sakthi Su....
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.... that situation the provision of section 14 of the limitation act are applicable to the facts of this case. Therefore, the period between 15.03.2012 to 18.07.2013 is required to be excluded. In the said situation the appeal was filed by the appellant before the Ld. Commissioner (A) is within time. In that scenario, we set aside the impugned order and hold the appeal was filed by the appellant within time. 14. In view of the above, we are of the considered opinion that there is no delay in fling of the appeal on the part of the appellants. Even if it is opined otherwise, the period for which the appeal was lying with the Commissioner of Customs, Sahnewal, Ludhiana requires to be excluded for arriving at limitation. We find that learned counsel for the appellants has given submissions on classification of the impugned goods. However, we find that the learned Commissioner has not dealt with the case on merits. Therefore, we cannot sit in judgement of the impugned order on this count. We find that, in the interest of justice, the matter should go back to the Commissioner (Appeals) to record his findings and to decide the issue on merits. 15. Coming to Appeal No. C/60003/2026, we ....
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....gainst the letter dated 21.12.2024 has been received on 24.02.2025 through Post. The appellant, at S. No.4 of appeal Form CA-1 has mentioned that the said decision was communicated to them on 21.12.2024. Hence, the appellant was required to file appeal by 19.02.2025 (i.e. within 60 days from 21.12.2024). I find that there is a delay of 05 days in filing of the said appeal i.e. the appeal is time barred. The delay in filing of appeal was conveyed to the appellant vide letter dated 15.04.2025, but the appellant neither bothered to reply to the said letter nor bother to file any condonation of delay application. Hence, the appeal does not merit acceptance on this count. 18. We find that learned Commissioner himself admits that there is delay of 05 days. He finds that the delay cannot be condoned as there is no application for condonation of delay and therefore, the appeal is liable to be rejected. We find that the appeal has been filed through e-mail within time and the hard copy has been also sent by speed post on the same day. It is recorded that the appeal was received by the Commissioner (Appeals) on 24.02.2025. Looking into this fact, learned Commissioner could have held that ....
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....sessment or reassessment of bill of entry. However, the Hon'ble Supreme Court in its judgment dated 18.09.2029 in the case of ITC Ltd. Vs CCE Kolkata-IV reported as 2019(368) ELT216(SC) has held that the claim of refund cannot be entertained unless the order of assessment or self-assessment is modified accordance to law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 the Customs Act, 1962 to set aside order of self-assessment and reassess duty for making refund; and in case any person is aggrieved by any order including self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. Thus, the assessment order has to be challenged by the importer in appellate forum and re-assessment be done afterwards commensurate with the order of the appellate authority and consequential refund, if any. 3.4 In view of the above, I find that the Deputy Commissioner has rightly held that the refund filed by the appellant is pre-mature and observed that refund claim can only be filed in the case where the assessment done by the appraisement section is challenged before the appellate auth....
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....ia Ltd 2023-VIL770-DEL-ST, affirmed by Hon'ble Supreme Court in SLP(CIVIL) Diary No(s)44385/2024, wherein it was held that before rejecting the refund claimed by the appellant therein, Revenue ought to have appealed against the bills of entry which were finally assessed. The jurisprudence that evolved on the subject established the principle that grant of refund is executionary in nature whereas as assessment is a judicial or quasi-judicial function. In the impugned case the assessment, the quasi-judicial function, has reached finality as the revenue has not appealed against the bills of entry and the same have been finally assessed. 22. Learned counsel for the appellants submits that the appellant has paid duty under Protest and such Protest has not been vacated by the Department by taking any of the steps like filing an appeal, issuing a demand notice etc. It has been held in a number of cases that the onus to get the stay vacated was on the Revenue. We find that Hon'ble Kolkata High Court in the case of Raymond Apparel Ltd. (supra) upheld the order passed by the Kolkata Bench of the CESTAT. Hon'ble High Court held that: The learned Tribunal considered the said conten....
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....tics & Chemicals Ltd. Vs. CCE, Aurangabad, 2002 (143) ELT 17 it was held that the refund of duty paid under protest will not be hit by the bar of unjust enrichment. The third Principal Bench of the Tribunal in the case of Collector of C. Ex Vs. Prestige Engineering (India) Pvt. Ltd., 1989 (41) ELT 530 (Tribunal) held that once a protest has been lodged, it became the duty of the Assistant Collector to dispose of the protest by an appealable order so that the assessee could go in appeal against those orders. Unless the Assistant Collector disposes of the protest in the aforesaid manner, as enjoined under Rule 2338, The protest cannot be deemed to have subsided. The co-ordinate Bench of the Tribunal in the case of Commissioner of Commissioner of Customs, Tuticorin vs. Sakthi Sugars Ltd., 2020 (372) ELT 577 (Tri. Chennai) held that the marking of protest itself gives information to the department that there is no requirement for reassessment. The assessment under Section 17 of the Customs Act, 1962 cannot be said to be finalised when the respondent therein has marked the protest while paying duty. It was further held that mark of protest is an information to the department th....
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.... of entry has a separate legal existence of its own. 26. We find that Kolkata Bench of the Tribunal in the case of M.P Mica Enterprises Pvt Ltd. - Final Order No. 75654/2026 dated 26.05.2026 held that: 9.2. In support of the above view, we rely upon the decision in the case of Stonex India Pvt Ltd. V. Commissioner of Customs, Mundra, reported in 2025 (391) E.L.T. 652 (Tri. - Ahmd.), wherein the Tribunal at Ahmedabad has held as under: "..... we find that demand of Customs duty of past imports under Annexure B and C to SCN is also not sustainable on the ground that goods were not tested by department in respect of past imports in respect of which demand is made in Annexure-B and C to SCN. It is settled position of law that each Bill of entry is a separate assessment and test report of one bill of entry cannot be made applicable to the goods imported under another bill of entry." 9.3. In the case of Penshibao Wang P. Ltd. V. Commissioner of Customs as reported in 2016 (338) E.L.T. 597 (Tri. - Chennai), the demand in respect of past clearances purely based on test report of live consignment was set aside by the Tribunal. 9.4. Thus, by relying on ....