9911796707
TMI Blog2017 (7) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty liability in respect of 28 Bills of Entry on the strength of the orders of the Hon’ble Delhi High Court, will necessarily have to be treated as payment of duty under protest and hence limitation of one year for claiming refund under Section 27 of the Customs Act, 1962 shall not apply in view of second proviso to sub-section (1) thereof. Appeal allowed - decided in favor of appellant. - Appeal No. C/40277/2016 - Final Order No. 41108 / 2017 - Dated:- 3-7-2017 - Shri Madhu Mohan Damodhar, Member ( Technical ) Shri J.C. Patel, Advocate For the Appellant Shri B. Balamurugan, AC (AR) For the Respondent ORDER The appellant herein had imported consignments containing equipments, spares and consumables vide 28 Bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Commissioner (Appeals). Aggrieved, the appellants had approached the CESTAT Chennai, who, by Final Order No.40528-40529/2014 dt. 23.06.2014 in Appeal Nos.C/282/2006 C/288/2006, remanded the matter back to the adjudicating authority with direction to decide afresh after considering the submissions of the appellant and in the light of the orders of Hon'ble Delhi High Court and Hon'ble Supreme Court. In the novo proceedings, the lower authority vide an order dt. 04.06.2015 has sanctioned refunds in respect of 15 (fifteen) out of the 28 Bills of Entry, however, disallowed refunds in respect of the remaining 13 claims (thirteen) on the ground of limitation. On appeal, Commissioner (Appeals) vide impugned order dt. 30.09.2015, uph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecommendatory letters and Essentiality Certificates respectively. He submits that the very fact that the claim was made based on the High Court's interim order would mean that the imported goods have been cleared under protest. 2.5 He draws attention to para-86 of the judgment of Hon'ble Supreme Court in the case of Mafalatlal Industries Ltd. Vs UOI - 1997 (89) ELT 247 (SC) where the Apex Court has clarified that when the duty is paid under the orders of Court (whether by way of an order granting stay, suspension, injunction or otherwise0 pending an appeal/reference/writ petition, it will certainly be a payment under protest and, in such a case, it is obvious, it would not be necessary to lodge the protest as provided by Rule 233 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the original authority. However, on appeal, Commissioner (Appeals) vide order dt. 21.10.2015 allowed their appeal and held that in the circumstances, including the interim order and final order of the Hon'ble High Court of Delhi, the refund cannot be held as time-barred. He submits that this order has been accepted by the department. 5.1 Heard both sides and have gone through the facts. 5.2 The core issue that comes up for decision is whether the discharge of customs duty liability on the imported goods by the appellant pursuant to the High Court order, can be treated as payment of duty under protest. 5.3 The appellant s contention is that such duty payment was effected only after the interim order of the Hon ble High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er observes that clearance of the goods by the importer under 28 Bills of Entry has to be treated as being under protest Further ahead in the same para he finds that the importer s request for reassessment of the said 28 Bs/E upon furnishing Essentiality Certificate in the light of the Delhi High Court order dt. 11.03.2003 is in order and cannot be denied . Department has not gone in appeal against these findings, nor have they been rebuffed by the Commissioner (Appeals) in the impugned order. In the circumstances, I am unable to fathom how in spite of such clear finding, and observations by the original and lower appellate authority that the duty payment in respect of 28 Bills of Entry has to be treated as paid under protest, nonetheless b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refunds in respect of 15 Bills of Entry, however, in respect of 13 other Bills of Entry having same qualification, the refund claims have been rejected. Interestingly, the Department has not preferred any appeal in respect of the refunds sanctioned. 5.10 It is also discerned that the very same controversy, relating to identical goods, had been raised in respect of the appellant's imports through Mumbai port, and the refund claims filed by them had been similarly rejected by original authority as barred by limitation. However, on appeal, Commissioner (Appeals) vide order-in-Appeal No.MUM-CUSTM-PAX-APP-444/15-16 dt 21.10.2015 reversed the order of the original authority and held that refund cannot be held as time-barred and granted ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
