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TMI Blog2022 (11) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... der a different category where no limitation applies is very much clear - In the case on hand, although refund claim is made out of a consequence of judgement, decree or order, the appellant having paid duty under protest, the limitation of one year envisaged in Section 27 will not apply. The issue of time bar is answered in favour of the appellant. Rejection of refund on the ground of being premature - It is the case of the Department that the claim is made without re-assessment / final assessment of the Bills of Entry - HELD THAT:- The view taken by the department that the refund claim is time-barred as well as premature appears to be self-contradictory. Further, it is the duty of the department to conduct reassessment in consequence to the orders passed by the Tribunal which has set aside the enhancement of the value of imported goods. Undisputedly, the department has accepted the order passed by the Tribunal and there is no appeal filed against the said order - The appellant was thus denied relief before a higher forum by contending that Department intends to file an appeal. Even after accepting the final order of Tribunal, they have not passed an order of final reassessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals filed by the appellant and affirmed the orders passed by the authority enhancing the value of the goods. 3. Similarly, the department passed a speaking order covering 5 Bills of Entry justifying and confirming the enhancement of value. An Order-in-Original No.23733/2014 in January 2014 was issued by the Assistant Commissioner of Customs (Group-3) rejecting the value declared and enhancing the same on the basis of NIDB data. Aggrieved by the order, the appellant filed an appeal before the Commissioner (Appeals), Chennai. The appeal was allowed by the Commissioner (Appeals) vide OIA No.745/2014 dated 01.05.2014 thereby setting aside the order of adjudicating authority enhancing the value of the goods. 4. The appellant then filed appeals before CESTAT, Chennai against the order passed by Commissioner (Appeals) dated 21.03.2014. These appeals were allowed in favour of the appellant in terms of Final Order Nos.40521-40522/2018 dated 01.03.2018 thereby setting aside the order passed by Commissioner (Appeals) who had confirmed the order of enhancement of value of imported goods. The department had also filed an appeal against the order passed by Commissioner (Appeals) dated 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed finality and is premature for claiming refund. (iii) The appellant had not produced documents required for processing the refund claim such as (a) original of the Duplicate Importer s copies of Bills of Entry and (b) Chartered Accountant certificate to rule out unjust enrichment. 7. Aggrieved by the above intimation of rejection dated 19.03.2020, the appellant filed appeal before the Commissioner (Appeals) who vide order impugned herein upheld the order passed by the original authority dismissing the refund claim as time-barred. Hence this appeal. 8. On behalf of the appellant Learned Counsel Shri S. Murugappan appeared and argued the matter. He submitted that the appeal relates to rejection of refund claim covering 21 Bills of Entry. In all these Bills of Entry, the duty was paid by the appellant under protest and they requested the Assistant Commissioner of Customs to issue a speaking order. However, the speaking orders were issued only on 22.08.2013 and in January 2014. The appeals filed against such orders travelled upto the Tribunal and vide Final Order No.40521-40522/2018 dated 01.03.2018 and Final Order No.40520/2018 dated 01.03.2018 the issue with respect to enh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SECTION 27 Claim for refund of duty.- 1 [(1) Any person claiming refund of any duty or interest,- (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest: Provided that where an application for refund has been made before the date on which the Finance Bill, 2011 receives the assent of the president, such application shall be deemed to have been made under sub-section (1), as it stood before the date on which the Finance Bill, 2011 receives the assent of the President and the same shall be dealt with in accordance with the provisions of sub-section (2): Provided further that the limitation of one year shall not apply where any duty or interest has been paid under protest. Provided also that where the amount of refund claimed is less than rupees one hundred, the same shall not be refunded. Explanation. - For the purposes of this sub-section, the date of payment of duty or interest in relation to a person, other than the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section and the same shall be dealt with in accordance with the provisions of sub-section (2): Provided further that the limitation of one year or six months, as the case may be, shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. Provided also that in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 25, the limitation of one year or six months, as the case may be, shall be computed from the date of issue of such order. Provided also that where the duty becomes refundable as a consequence of judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year or six months, as the case may be, shall be computed from the date of such judgment, decree, order or direction. Explanation I . For the purposes of this sub-section, the date of payment of duty and interest, if any, paid on such duty , in relation to a person, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The second proviso to sub-section (1) of Section 27 which states that the limitation of one year shall not apply when duty or interest is paid under protest, is therefore saved. 14. Ld. Counsel contended that sub-section (1B) has been introduced as an Explanation and the object of Explanation is to understand the act in the light of the Explanation. It does not ordinarily enlarge the scope of the original section which it explains, but only makes the meaning clear beyond dispute. In this regard, judgment of the Hon ble Apex Court in the case of S.Sundaram Pillai and Ors Vs V.R. Pattibiram and Ors.- AIR 1985 SC 582 was relied by the Ld. Counsel and the relevant para of which reads as under : 46. We have now to consider as to what is the impact of the Explanation on the provisio which deals with the question of wilful default. Before, however, we embark on an enquiry into this difficult and delicate question, we must appreciate the intent, purpose and legal effect of an Explanation. It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether s.12 of the Act is retrospective. It was observed by Wood, V.C., in Fitzgerald v. Champneys (1861) 2 J. H.31: 70 E.R. 958 that saving clauses are seldom used to construe Acts. These clauses are introduced into Acts which repeal others, to safeguard rights which, but for the savings, would be lost. The proviso here saves pending suits and proceedings, and further enacts that suits and proceedings then pending are to be transferred to the courts designated in the Act and are to continue under the Act and any or all the provisions of the Act are to apply to them. The learned Solicitor-General contends that the savings clause enacted by the proviso, even if treated as substantive law, must be taken to apply only to suits and proceedings pending at the time of the repeal which, but for the proviso, would be governed by the Act repealed. According to the learned Attorney-General, the effect of the savings is much wider, and it applies to such cases as come within the words of the proviso, whenever the Act if extended to new areas. 17. The decision in the case of M/s.Agfa Healthcare Pvt. Ltd. Vs CC Chennai 2021 (4) TMI 429 CESTAT Chennai was relied upon to argue that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that another ground on which the original authority has rejected the refund claim is that the claim is premature. This view has been taken based on the Public Notice No.88/2019 dated 18.10.2019. The said public notice has been issued pursuant to a judgement of the Hon ble Supreme Court in the case of ITC Ltd. calling for the officers and giving direction to them to the effect that no refund shall be allowed unless the order of assessment including self-assessment is duly modified by way of an appeal. He submitted that in the present case, the appellant had requested for re-assessment after getting favourable orders from the Tribunal. It is the duty of the department to pass the reassessment orders. Refund claim filed by the appellant cannot be rejected for the inaction on the part of the department. 20. In regard to the view taken by the original authority that the refund claim is not complete as it is not supported by necessary document, it is submitted by the Ld.Counsel that the originals of the Bills of Entry had already been produced by the appellant while filing claim for Special Additional Duty refund. Duplicate copies of the Bills of Entry had been filed mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.04.2018, 04.06.2018 and 19.06.2018. The appellant also filed a Writ Petition No.22120 of 2018 before the Hon ble High Court of Madras seeking directions to carry out final assessment and the Hon ble High Court of Madras held that the court is not in a position to issue a positive direction as the department is contemplating to file appeal against the order passed by the Tribunal and that the appeal time has not expired. The appellant then filed refund claim on 07.08.2019. This was rejected vide intimation dated 19.03.2020 by the refund section on the ground that the refund application is time-barred and it is filed after one year from the date of order of Tribunal). It was also held that the refund application is premature as the Bills of Entry were not re-assessed and the matter has not attained finality as the department was contemplating to file appeal against the order passed by the Tribunal. However, the department has accepted the final order passed by the Tribunal on monetary limitation. 24. The appellants were given an opportunity of hearing and the appellant s averment that the principles of natural justice was not followed is incorrect. Prior to issuance of order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation of one year shall not apply when the duty is paid under protest. In the present case, there is no dispute that the appellant had paid the duty under protest. Ld. A.R has argued that when a speaking order has been issued by the original authority, the protest recorded by the appellant automatically gets vacated. Such an argument is untenable. The intention of making a protest is to inform the disagreement to the demand of duty. When a protest is recorded, it becomes the duty of the Department to pass a speaking order giving reasons for enhancement of the value of the goods. In this case, such a speaking order was passed only when a request was made by the appellant. Be that as it may, the appellant preferred an appeal before the Commissioner (Appeals) and thereafter the matter travelled upto the Tribunal. The argument of the Ld. AR that when a speaking order is issued (appealable order), the protest automatically gets vacated is unacceptable when the dispute with regard to demand of duty is carried to the higher forum. 32. The second proviso of sub-section (1) of Section 27 states that the limitation of one year will not apply when duty is paid under protest. The ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the specific provision and it is the latter that prevails. Undoubtedly Sub-section (2) contains a rule for the computation of taxes in regard to lands or buildings or both, that is to say, lands which are of a general character. It is operation will be excluded when there is a specific provision for a specific type of land. In this case the lands assessed are agricultural lands and the mode of taxation is provided for in Sub-section 4. Following this rule of construction, we must hold that it is Sub-section (4) that applies. (emphasis supplied) 33. It is clear from the above, only in cases except as provided in Section 27, the newly added sub-section (1B) would apply. In other words, except for which has been provided in the section, the limitation of one year has to be computed from the date on which the judgment, decree or order of court has been passed. Thus, the operation of sub-section (1B) will not come into application when the duty is paid under protest. 34. The position of law was slightly different prior to 08.04.2011. On perusal of Section 27 as it stood prior to the amendment, it can be seen that the second proviso states that one year / 6 months, as the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court that they are contemplating to file an appeal, they have not done so. The appellant was thus denied relief before a higher forum by contending that Department intends to file an appeal. Even after accepting the final order of Tribunal, they have not passed an order of final reassessment. The inaction on the side of the department cannot be a ground to reject the refund claim as premature. 36. The other reason for rejection of the refund is that refund claim is incomplete and not supported by necessary documents. Ld. Counsel for appellant has submitted that they have furnished the Chartered Accountant certificate before the Commissioner (Appeals). It is also stated that they have furnished original Bills of Entry while applying for refund of SAD. The matter having reached upto the Tribunal and also the Hon ble High Court, it can be safely inferred that the department will not find it difficult to verify the copies of Bills of Entry produced by the appellant. The appellant having produced the Chartered Accountant certificate only before the Commissioner (Appeals), the original authority has not been able to verify the issue of unjust enrichment. For this reason, I hol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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