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TMI Blog2024 (6) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, without challenging the assessment of bills of entry, the refund claims were not maintainable in the light of the decision of the Hon ble Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [ 2019 (9) TMI 802 - SUPREME COURT] - the observations made by the Ld. Commissioner (Appeals) in the impugned order not agreed upon and it is held that as there was a protest, duty was paid under protest, by the respondent. Therefore, the refund claims cannot be held as barred by the limitation and cannot be rejected on the ground that the refund claims were filed without challenging the assessment as assessment was not final. There are no merit in the appeals filed by the Revenue. Accordingly, the same are dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... Cause Notice, the refund claim was allowed in full. 5. Both sides challenged the orders before the Ld. Commissioner (Appeals), who passed the impugned orders allowing the refund claimed by the respondents. 6. Aggrieved from the said orders, the Revenue is before us. 7. The main ground raised by the Revenue in the present appeals is that once the Hon'ble Apex Court passed the order in the case of SRF Ltd. (supra) in 2015, the protest made by the respondent stood vacated and the respondent were required to file refund claims within one year from the said date, which they have failed to do. 7.1. Further, it is contended that as bills of entry were assessed finally, therefore, without challenging the assessment of bills of entry, the refund claims are not maintainable. 8. On the other hand, Ld. Counsel appearing on behalf of the respondent supported the impugned orders. 9. Heard the parties and considered the facts. 10. We find that in both the appeals, the facts which are not in dispute are that the respondent paid CVD under protest and after the decision by the Hon'ble Apex Court in the case of SRF Ltd. (supra), the respondent was entitled to the benefit of Notification No. 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC-CU is applicable or otherwise. 11. I find that once the duty is paid under protest, the assessing authority is under obligation to pass a speaking order on the assessment of bill of entry and the Bill of Entry can be said to have attained finality as protest has to be vacated by passing of a reasoned speaking order. Since the department has accepted that the duty was paid under protest in the impugned 174 Bills of Entry, therefore without passing speaking orders for the same. the protest lodged by the respondent is still required to be vacated and assessment done on the impugned Bills of Entry had not attained finality In this regard, I find that the adjudicating authority keeping in view the decision of Hon'ble Supreme Court in the matter of ITC Ltd. v. CCE. Kolkata IV. 2019- VIL-32-SCCU, further relied upon the decision made In the case of CINCINNATI MILACRON LTD. Vs. COMMISSIONER OF CUS (ACC), MUMBAI, 2009 (236) E.L.T.619 (Tri- Mumbai) wherein Hon'ble Tribunal has held that protest payment is itself a challenge to assessment on Bill of Entry. Relevant portion of the decision relied upon by the adjudicating authority is reproduced below:- "2. I have heard bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect that payment of duty under protest (it is admitted that the appellants herein paid duty under protest) itself amounts to a challenge to the assessment of the Bill of Entry and if this submission found acceptable, then to consider the evidence brought on record by the importers to rebut the legal presumption that duty burden has been passed on by them to their customers. He shall pass orders after extending reasonable opportunity to the appellants of being heard." I find that relying on above observation the adjudicating authority held that in the instant case all the Bills of Entry shall be considered as a challenge to the assessment order (as required in decision of ITC supra) as the duty has been paid under protest and therefore the respondent was eligible for notification benefit. 12. From the above observation of the adjudicating authority I have also noticed that since the order in the matter of CINCINNATI MILACRON LTD. Va. COMMISSIONER OF CUS (ACC), MUMBAI, 2009(236) E.L.T.619 (Tri-Mumbi) was passed prior to decision of ITC Ltd. v. CCE. Kolkata IV. 2019- VIL-32-SC-CU, the requirement of challenge of assessment of Bill of Entry for refund purpose as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT CHENNAI has also held as below:- '7. The first issue that arises for consideration is whether decision in the case of Priya Blue Industries (supra) and ITC Ltd. (supra) would apply to the facts of this case. Ld A.R has argued that since respondent has not requested for reassessment of the Bill of Entry, they are not eligible for refund. It is not disputed that the respondents have paid the cess at the time of filing the Bill of Entry under protest. The marking of protest itself gives information to the department that there is requirement for reassessment. Assessment under Section 17 of Customs Act, 1962 cannot be said to be finalized when respondent has marked the protest while paying duty. In case, respondents had paid the entire duty without any mark of protest, in order to claim refund they have to request for reassessment of Bill of Entry. The mark of protest is an information to the department that the respondent is not making payment of cess voluntarily and then department has to initiate proceedings to vacate protest and pass speaking order for reassessment. If the department fails to do so the respondents cannot be put to any disadvantage of rejecting the refund clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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