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2017 (11) TMI 1533 - AT - CustomsRefund of excess duty paid - rejection on the ground of time limitation - While the original authority held the refund claim as time-barred, the lower appellate authority allowed the appeal on the ground that the export duty paid should be treated as paid under protest. Held that - It cannot be denied that the facts leading to the filing of refund claim have occurred due to the change in stand of the department. In the first place, the Notification dated 13.6.2008 created a situation requiring issue of show cause notice for differential duty. Nonetheless, the Board Circular dated 10.11.2008 did a U turn in the existing practice and clarified that till 31.12.2008, the FOB price would be treated as cum-duty price. Appeal dismissed - decided against Revenue.
Issues:
1. Refund claim time-barred or not. 2. Whether duty was paid under protest. 3. Applicability of CBEC Circular dated 10.11.2008. 4. Adjudication of the demand notice. 5. Interpretation of Customs Act, 1962. Issue 1: Refund claim time-barred or not: The respondent exported iron ore and discharged export duty based on FOB value. A demand notice was issued by the department for differential duty, which the respondent paid. The respondent later sought a refund, claiming it was paid under protest. The original authority rejected the refund claim as time-barred, but the lower appellate authority allowed it. The department contended that the normal six-month period for refund claims should apply under the Customs Act, 1962. However, the Tribunal noted the change in the department's stand due to the CBEC Circular dated 10.11.2008, which clarified the duty computation method. Referring to past judgments, the Tribunal held that the refund claim was valid and not time-barred. Issue 2: Whether duty was paid under protest: The department argued that the duty was not paid under protest as no formal protest was made at the time of payment. However, the respondent claimed that the payment was made under protest due to the unresolved dispute arising from the demand notice. Citing relevant case laws, the respondent contended that the deposit should be considered as paid under protest. The Tribunal agreed with the respondent's interpretation, considering the circumstances and the absence of a formal adjudication order appropriating the amount paid. Issue 3: Applicability of CBEC Circular dated 10.11.2008: The CBEC Circular issued on 10.11.2008 clarified the duty computation method, prompting the respondent to file a refund claim based on the revised policy. The Tribunal acknowledged the impact of this circular on the refund claim and considered it a significant factor in determining the validity of the claim. Issue 4: Adjudication of the demand notice: The Tribunal highlighted the lack of a speaking order or formal adjudication of the demand notice issued to the respondent. This absence of a conclusive decision on the demand notice contributed to the dispute regarding whether the duty was paid under protest or not, ultimately influencing the outcome of the case in favor of the respondent. Issue 5: Interpretation of Customs Act, 1962: The Tribunal analyzed the provisions of the Customs Act, 1962 in light of the specific circumstances of the case, emphasizing the importance of the CBEC Circular and past legal precedents in determining the validity of the refund claim. By considering the evolving legal landscape and relevant case laws, the Tribunal arrived at a decision dismissing the department's appeal and upholding the lower appellate authority's ruling in favor of the respondent. This detailed analysis of the judgment from the Appellate Tribunal CESTAT CHENNAI illustrates the complex legal considerations and interpretations involved in resolving the issues related to the refund claim and duty payment under protest.
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