2024 (3) TMI 507 - AT - Customs

Refund claim for the amount of CVD paid - time limitation - no speaking order was passed by the assessing officers as required under Section 17(5) of the Customs Act - violation of principles of natural justice - HELD THAT - There is nothing left to imagination that the impugned assessment would automatically be deemed to be provisional as CVD thereon was paid under protest, at the time of import and clearance of goods for home consumption in accordance with the scheme of the statue. It is therefore imperative to first finalize the assessment undertaken at the time of import. The decision on merits of the refund claim filed shall arise only thereafter once a speaking order in terms of Section 17(5) of the Customs Act has been issued finalising the assessment of the imported goods. In case the department is not able to lay its hands on the subject documents evidencing payment of duty under protest, the department is directed for the re-construction of the files and on the basis of documents filed by the appellant alongwith the subject refund claims filed by the importer/appellant. The orders passed by of the lower authorities set aside and the matter remanded to the assessing group to decide on the protest lodged, by the importer at the time of import and payment of duty (CVD) under protest . Appeal disposed off by way of remand.

Summary

Issues involved:
The judgment involves the rejection of a refund claim by the appellant related to the payment of Countervailing Duty (CVD) "under protest" during the import of silk yarn and silk fabrics. The main issue revolves around the finalization of the assessment and the necessity of a speaking order in accordance with the Customs Act.

Issue 1: Rejection of Refund Claim
The appellant imported silk yarn and silk fabrics during August to December 2009, paying CVD "under protest" to avoid demurrage charges. The refund claim for the CVD paid was rejected on merits without considering the finalization of the assessment where duty was paid "under protest." The assessing authority did not issue a reassessment order, leading to ambiguity regarding the payment status.

Issue 2: Legal Interpretation of Protest
The appellant submitted detailed protest letters and sought reassessment orders for the Bills of Entry, emphasizing the payment of duty "under protest." The Tribunal referred to legal precedents to explain that the protest stands until the question for which duty was paid under protest is decided. It highlighted the necessity of finalizing the assessment process before considering a refund claim.

Issue 3: Tribunal's Decision
The Tribunal emphasized the importance of finalizing the assessment where duty was paid "under protest" before deciding on the refund claim. It directed the department to reconstruct files if necessary and remanded the matter to the assessing group to decide on the protest lodged during import. The Tribunal refrained from commenting on the case's merits to avoid prejudicing the decision-making authority.

Conclusion
The Tribunal disposed of the appeal by remanding the case for further assessment within four months, emphasizing the need for a speaking order finalizing the assessment before considering the refund claim. The decision highlighted the procedural importance of addressing protests before evaluating refund claims in accordance with the Customs Act.