2024 (6) TMI 310 - AT - Customs

Refund claim - time limitation for filing refund claim - refund rejected on the ground that same are barred by limitation as same has been filed beyond one year from the date of payment of duty - assessment of the bills of entry not challenged. Time Limitation - HELD THAT - Admittedly the duty was paid by the respondent under protest. Unless and until the protest is not vacated by a speaking order the duty paid under protest shall remain paid under protest. In these circumstances the time-limit prescribed under Section 11B of the Central Excise Act of one year to file refund claim of duty paid is not applicable. Therefore the refund claims filed by the respondent under protest are filed by the respondent in time. Assessment of the bills of entry not challenged - HELD THAT - Another issue has taken by the Revenue is that as the assessment of bills of entry had become final therefore without challenging the assessment of bills of entry the refund claims were not maintainable in the light of the decision of the Hon ble Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE KOLKATA -IV 2019 (9) TMI 802 - SUPREME COURT - the observations made by the Ld. Commissioner (Appeals) in the impugned order not agreed upon and it is held that as there was a protest duty was paid under protest by the respondent. Therefore the refund claims cannot be held as barred by the limitation and cannot be rejected on the ground that the refund claims were filed without challenging the assessment as assessment was not final. There are no merit in the appeals filed by the Revenue. Accordingly the same are dismissed.

Summary

Issues Involved:
1. Limitation period for filing refund claims.
2. Requirement to challenge the assessment of bills of entry for refund claims.

Summary:

Limitation Period for Filing Refund Claims:
The respondent imported ready-made garments from Bangladesh and paid additional duty of customs (CVD) under protest. Following the Supreme Court's decision in SRF Ltd. v. Commissioner of Customs, Chennai, the respondent was entitled to the benefit of Notification No. 30/2004-CE, which exempted them from CVD. The respondent filed refund claims for CVD paid under protest, but these were initially rejected by the Revenue on the grounds of being time-barred, as they were filed beyond one year from the date of payment. The Tribunal held that since the duty was paid under protest, the time-limit prescribed u/s 11B of the Central Excise Act does not apply until the protest is vacated by a speaking order. Therefore, the refund claims were deemed to be filed in time.

Requirement to Challenge the Assessment of Bills of Entry for Refund Claims:
The Revenue argued that the refund claims were not maintainable without challenging the final assessment of the bills of entry, citing the Supreme Court's decision in ITC Limited v. Commissioner of Central Excise, Kolkata-IV. However, the Tribunal found that since the duty was paid under protest, it is deemed to be provisionally assessed. The Tribunal agreed with the Commissioner (Appeals) that the protest itself amounts to a challenge to the assessment, and thus, the refund claims cannot be denied on the ground that the assessment of the bills of entry was not challenged. The Tribunal upheld the Commissioner (Appeals)'s decision, which relied on various judicial precedents, including the case of Cincinnati Milacron Ltd. v. Commissioner of Customs (ACC), Mumbai, which held that payment of duty under protest is itself a challenge to the assessment on the bill of entry.

Conclusion:
The Tribunal dismissed the appeals filed by the Revenue, holding that the refund claims were filed within the permissible time frame and were maintainable without challenging the assessment of the bills of entry, as the duty was paid under protest.