2021 (4) TMI 429 - AT - Customs

Refund the excess duty paid - duty paid under protest - rejection of refund on the ground that it is beyond one year when computed from the date of reassessment of the bills of entry - Time limitation - HELD THAT - There is no dispute that the appellant has paid excess duty of ₹ 29,57,931/- after reassessment of the bills of entry by extending the benefit of Notification No. 12/2012-CE. The refund has been rejected on the ground that it is barred by limitation - When the appellant has approached the higher forum aggrieved by the rejection of the notification benefit, it is sufficiently implied that the duty has been paid under protest. The Tribunal in the case of BAYSHORE GLASS TRADING PVT. LTD. VERSUS COMMISSIONER OF CUS., KOLKATA 2002 (7) TMI 161 - CEGAT, KOLKATA has held that when appeal is filed against the assessment of the bill of entry, the same has to be considered as a protest in paying the duty. The rejection of refund on the ground of time-bar is unsustainable - Appeal allowed - decided in favor of appellant.

Summary

Issues: Refund claim rejection based on limitation period after reassessment of bills of entry.

In this case, the appellant filed 5 Bills of Entry for the import of "Digitizer" without availing the benefit of Notification No. 12/2012-CE (Sl. No. 312). After a request for reassessment was rejected by the Assistant Commissioner, the Commissioner (Appeals) directed the lower authority to consider the benefit of the Notification. The bills of entry were reassessed, and the appellant sought a refund of the excess duty paid amounting to ?29,57,931. The refund claim was rejected by the authorities citing it as beyond the one-year limitation period from the date of reassessment. The appellant approached the Tribunal aggrieved by this decision.

Analysis:
The appellant contended that the duty was paid under protest, and hence, the limitation prescribed under section 27(2) of the Customs Act should not apply. Citing the case of Bayshore Glass Trading Pvt. Ltd. Vs. Commissioner, Kolkata, the appellant argued that under Article 265 of the Constitution, tax collected in contravention must be refunded to the assessee. The appellant requested the Tribunal to allow the appeal based on these arguments.

The Assistant Commissioner rejected the refund claim based on the limitation period. However, the Member (Judicial) noted that when an appeal is filed against the assessment of the bill of entry, it should be considered as a protest in paying the duty, as per the precedent set by the Tribunal in the case of Bayshore Glass Trading Pvt. Ltd. The Member (Judicial) found the rejection of the refund claim on the ground of being time-barred as unsustainable. Consequently, the impugned order was set aside, and the appeal was allowed with any consequential relief deemed necessary.