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TMI Blog2016 (4) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... paid under protest or not does not stand substantiated before us by production of sufficient documentary evidence - inasmuch as neither of the authorities below have given categorical finding that duty was actually paid under protest, the matter needs to be remanded to the original adjudicating authority - appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaring the same as having been paid under proteston the TR 6 challan. In such a scenario the appellant took a stand that no limitation period would apply. In the alternative, they took a stand that fact of filing an appeal against the order of the original adjudicating authority loading the declared value, by itself, constitute protest and the excess duty is required to be considered as having been paid under protest. In that case also, the proviso to section 27 expressly stipulates that the period of limitation shall not apply where any duty has been paid under protest. 4. The original adjudicating authority did not accept the appellants stand by observing that the original order was passed on 26.8.04, loading the declared value for a period of 3 years and it was ordered that all pending PD cases to be finalized on the above basis and the appellant had not challenged the final assessment in the Bills of Entry before the appellate authority. He also observed that appellant had not lodged the protest against the subject Bills of Entries. Even though the appellant had challenged the order of SVB before Commissioner (Appeals), but has not challenged the orders under Bill of Entries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant, which has been rejected on the ground of time bar. 9. As per the provisions of section 27 of Customs Act, 1962, refund claim is required to be filed before the expiry of six months from the date of payment made by the assessee. However, as per 2nd proviso to section 27(1)(b), such limitation of one year/six months as the case may be, shall not apply when any duty and interest has been paid under protest. The appellants have strongly contended that duty stand paid by them under protest, during the pendency of the appeal before the Commissioner (Appeals) and inasmuch as such protest never stand vacated by the Revenue, no limitation would be available to the Revenue so as to deny the refund claim. 10. On the other hand, Revenues stand is that the dispute on the valuation, came to an end with effect from 23.4.09 with the passing of order by Asstt. Commissioner SVB allowing the declared value by 46% of the GPA. As such, limitation to file refund claim start running from the date of said order and refund claim filed on 12.4.2010 is barred by limitation. 11. We find that there is no clear finding by the authorities below on the fact of duty having been paid under protest. Even t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court decision in the case of M/s. Dena Snuff (P) Ltd. vs. CCE, Chandigarh as reported in [2003 (157) ELT 500 (SC)] and the revenuesinsistence on the issue that cause of action for the period of limitation would only arise from the date of decision in the assessees own case and inasmuch as the cause of action has arisen in the appellants case with the passing of the order by the Asstt. Commissioner on 23.3.2009, from which date the limitation period would start running. However, we have seen the said decision of the Honble Supreme Court which stand passed in different set of facts and circumstances. In that decision before the Supreme Court the refund application was filed by the assessee based upon the decision of the higher authorities in the case of another assessee. It was only in these circumstances, the Honble Supreme Court observed that the period of limitation would start to run from the date of final assessment in assessees own case. There was no issue of duty having been paid under protest before the Honble Supreme Court. Infact we find that the said decision of the Honble Supreme Court was considered by the Honble Kerala High Court in the case of Itel Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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