2008 (6) TMI 190 - AT - Central Excise

Refund - refund claim filed after expiry of one year on ground that duty was paid under protest - Condition of Not. No. 32/97 has been violated and goods had not been exported and no permission for extension of time had also been taken from the concerned authority - Long after fulfilling the condition of notification their payment cannot be treated as under protest - there was no threat or coercion by the Department refund claim is held as time barred

Issues:
Challenge to rejection of refund claim on time bar under Section 27 of the Customs Act, 1962.
Consideration of whether payment was made under coercion or threat by the Department.
Interpretation of the applicability of the Notification No. 32/97-Cus. dated 1-4-1997.
Analysis of whether the payment should be considered as made under protest.
Evaluation of the impact of failure to comply with export obligations and seek extension of time.

Issue 1: Challenge to rejection of refund claim on time bar under Section 27 of the Customs Act, 1962:
The appellant contested the Order-in-Appeal rejecting the refund claim as time-barred under Section 27 of the Customs Act, 1962. The Commissioner of Central Excise (Appeals) dismissed the appeal noting that the refund claim exceeded the limitation period. The appellant argued that the payment was made under coercion by the Department and should be treated as under protest. However, the failure to process and export goods within the stipulated time under Notification No. 32/97-Cus. dated 1-4-1997 was highlighted. The appellant's compliance with export obligations after the expiration of the period was cited as a basis for considering the payment as under protest. The appellant relied on various judgments to support this contention.

Issue 2: Consideration of whether payment was made under coercion or threat by the Department:
The Department contended that the liability to pay duty arose under Notification No. 32/97-Cus. dated 1-4-1997, and the payment was made without protest. It was emphasized that the goods were exported after the expiry of the period, without seeking permission for an extension of time. The Department argued that the demand for duty was justified and not made under coercion or threat. Reference was made to a Supreme Court judgment to support this position.

Issue 3: Interpretation of the applicability of Notification No. 32/97-Cus. dated 1-4-1997:
The Tribunal examined whether the payment was made under coercion or threat by the Department. It was observed that the appellant did not adhere to the terms of the Notification in processing goods for re-export within the specified period or obtain permission for an extension. The payment made by the appellant, long after the due date, was considered legitimate without any protest or coercion. The Tribunal distinguished the cited judgments where payments were made under protest as the demands had not matured, unlike the present case where the notification conditions were violated.

Issue 4: Analysis of whether the payment should be considered as made under protest:
The Tribunal concluded that the payment of duty was not made under protest, as the duty was legitimately collected due to the violation of the notification terms. The absence of protest in any document or letter, coupled with the delayed fulfillment of export conditions, led to the rejection of the claim that the payment was made under protest. The Tribunal held that the refund claim was time-barred as both authorities had determined, emphasizing that the judgments cited by the appellant were not applicable in this context.

Issue 5: Evaluation of the impact of failure to comply with export obligations and seek extension of time:
The failure to comply with export obligations within the specified period, coupled with the absence of permission for an extension of time, significantly influenced the Tribunal's decision. The Tribunal emphasized that the duty was liable to be paid as per the notification terms, without any coercion or threat from the Department. The non-compliance with export conditions and the delayed payment without protest led to the rejection of the appeal.

In conclusion, the Tribunal dismissed the appeal, holding that the refund claim was time-barred and the payment was not made under protest, given the violation of notification conditions and absence of coercion or threat in the payment process.

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