2022 (9) TMI 1073 - AT - Customs

Refund of CVD - rejection of refund claim on the ground of time limitation - merits of the case, not gone into - non-speaking orders - HELD THAT - There is no dispute that after adjudication / assessment, the appellant did remit the CVD plus BCD and the same was not under protest and, as could be seen from the pleadings as well as the orders of both the lower authorities, the said adjudication / assessment had reached finality for the same reason. This happened perhaps in the year 2008 and since then, there is nothing available on record to suggest that the appellant had litigated directly or indirectly and that its litigation was pending before any of the authorities including CESTAT. There is also no whisper about intimating the Revenue about the pendency of any litigation before any fora in this regard. It was nearly after ten years that the judgement of the Hon ble Apex Court in M/s. Enterprises International Ltd. 2017 (4) TMI 80 - SC ORDER was passed, which the appellant is trying to take advantage of by claiming that its application for refund is within one year from the date of the above judgement. This is clearly an afterthought, which cannot be accepted, since the scope of Section 27 ibid. is limited to the claimant who pursues by means of litigation before higher authorities and hence, any third person cannot derive any benefit out of the same. The appellant having slept over its right for nearly ten years, cannot take shelter as it has taken, which is not permitted under law - Appeal dismissed.

Summary

Issues:
Whether the rejection of refund of CVD claimed by the taxpayer is correct or not?

Analysis:
The appellant imported silk fabrics through Chennai Port and sought adjudication for the Bills-of-Entry to release the goods. The appellant did not mention remittance "under protest" while paying CVD along with BCD after adjudication. A refund claim for the CVD was filed within the limitation period post a relevant court judgment. The appellant argued that the claim was within the limitation period as per the Customs Act. The appellant cited a previous CESTAT order and a Supreme Court judgment in support of their claim.

The Revenue representative contended that the appellant, being a trader and not a manufacturer, failed to protest during assessment, leading to rejection of the refund claim. The Revenue cited Supreme Court judgments to support their stance. The appellant argued that the lower authorities rejected the claim solely based on limitation without assessing the merits, requesting a remand for fresh adjudication.

The tribunal noted that the appellant did not protest during assessment, and the adjudication had reached finality without any pending litigation. The tribunal found the appellant's reliance on the Supreme Court judgment for the limitation period as an afterthought. The tribunal held that the limitation period starts from the date of finalization of Bills-of-Entry/adjudication, not the Supreme Court judgment date. Consequently, the tribunal upheld the lower authorities' decision, dismissing the appeal.

In conclusion, the tribunal found the rejection of the refund claim justified, as the appellant failed to act within the limitation period and did not protest during assessment. The tribunal emphasized that the limitation period starts from the finalization of adjudication, not from subsequent court judgments. Therefore, the appeal was dismissed, affirming the lower authorities' decision.