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TMI Blog1988 (8) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... ments with the result the appellants have to re-import the 22 cases of engine valves. On re-importation the appellants paid the duty and cleared the goods. It is their further case that since the duty was not payable they lodged the claim for the refund of the duty with the Assistant Collector of Customs, Refund Department, Bombay. However he rejected the refund claim as barred by time under Section 27 of the Customs Act, 1962 being received after the expiry of 6 months from the date of payment of duty. Being dissatisfied, the appellants filed their appeal against the said Order of the Assistant Collector rejecting the claim as time barred, but without success. Hence the present appeal. 3. Shri D.N. Mehta, learned Counsel for the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, learned SDR while supporting the impugned order submitted that the plea that the duty was paid under protest was not advanced before the Assistant Collector and it appears that for the first time the appellants produced the said letter dated 18-7-1981 before the Collector of Customs (Appeals), Bombay. He emphasised that even in the said letter a simple request not to charge the duty was made before the clearance of the goods and therefore the Collector (Appeals) rightly held that the said letter alone cannot be considered as duty paid under protest for the purpose of Section 27 of the Customs Act. He further submitted that according to Section 27 of the Customs Act limitation starts from the date of the payment of duty and hot from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the plea that the duty was paid under protest was not raised before the Assistant Collector, we find that the said letter dated 18-7-1981 cannot constitute as duty paid under protest . The said letter reads as follows :- OURREF:GEN/81/278 , Date: 18/7/81 The Assistant Collector of Customs, Import Department, New Customs House, Ballard Estate; Bombay-400038. Sub : Reimport of 22 cases of Diesel Engine Port Vide IGM No. 571, Line No. 53. Dear Sirs, We have been instructed by M/s. Shama Engine Valves Ltd. to send the subject cases to their Bhopal factory after clearance. As the goods are going back to factory the duty please may not be char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. Even otherwise if the contention of the learned Counsel for the appellants that the duty was paid as per remark of the Appraising Officer is accepted for the sake of arguments, the case of the appellants does not advance further because in that case it may be said at the most in favour of the appellants that the payment of duty was made not voluntarily but involuntarily. For, involuntary payment and payment under protest are not the same thing and for claiming the benefit of the proviso to Section 27 it is not enough that the payment of duty was made involuntarily. In our view it is also necessary to lodge protest in the terms that the payment was made not only involuntarily but under protest. In a nutshell every involuntary payment can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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