2018 (3) TMI 1143 - AT - Customs

Refund claim - duty paid under protest - time limitation - Held that - there cannot be any doubt that the clearances related to the 7 Bills of Entry relating to Sl.No.12 to 18 of the list have also to be treated as cleared under protest - In any case, as pointed out by the Ld. Advocate, the original authority himself has noted that all these claims have been made within the prescribed period of limitation - denial of refund do not sustain - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claims for duty paid without availing benefit under Customs Notification No.21/2002-Cus., denial of reassessment and refund by original authority, appeal allowed in respect of 22 Bills of Entry but rejected for 7 Bills of Entry due to lack of evidence for provisional assessment or payment under protest.

Analysis:
The appellants filed 20 Bills of Entry for goods clearance, paying duty without availing Customs Notification benefit. They later sought refunds, presenting an Essentiality Certificate from the Director General of Hydrocarbon (DGH) after a writ petition to the Delhi High Court. The High Court's interim order allowed duty payment under protest. Despite ONGC issuing recommendation letters during the petition, the DGH granted Essentiality Certificates. The original authority rejected reassessment and refund requests citing finality of assessment. The Commissioner (Appeals) allowed the appeal for 22 Bills of Entry, directing a review based on the High Court's directions. However, 7 Bills of Entry lacked evidence of provisional assessment or duty payment under protest, leading to their appeal rejection.

Upon hearing both sides, the Tribunal noted that claims for Bills of Entry 12 to 18 were filed following goods clearance per the Delhi High Court's interim orders. Referring to a previous Tribunal order and a Supreme Court judgment, the Tribunal recognized duty payment under court orders as under protest, eliminating the need for a formal protest. The Tribunal concluded that the clearances for the 7 Bills of Entry should be treated as under protest, especially as the claims were within the time limit. Consequently, the Tribunal set aside the denial of refund for these 7 claims, ruling in favor of the appellant and allowing the appeal on these terms.