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TMI Blog2024 (9) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI [ 2015 (4) TMI 561 - SUPREME COURT] held that the benefit of CVD exemption is available to the importer of final product and after the decision of Hon ble Apex Court, the appellant filed refund claim on 07.01.2016, which was rejected by both the authorities below as time barred. It is found that the appellant vide letter dated 06.06.2014 have lodged protest, though the word Under Protest was not specifically written in the said letter, but the spirit of the contents of the letter shows that it was the protest because in the Customs Act as well as in the Central Excise Act, no format is prescribed for lodging the protest. In the present case, no show cause notice was issued and no adjudication took place. It is also found that the amount was deposited by the appellant on the insistence of the department and not voluntarily and it was not the duty, it was merely a deposit. Therefore, the appellant is entitled to get the refund of the amount deposited under protest and denial of refund as time-bar is not sustainable. The judgments relied upon by the learned AR a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled an application seeking refund of Rs.54,96,429/- on 07.01.2016. After following the due process, the Adjudicating Authority rejected the refund vide the Order-in-Original dated 13.10.2017 on the ground of time-bar because the Bills of Entry and TR-6 Challans were not endorsed as Under Protest . The appellant filed appeal before the Commissioner (Appeals) and the learned Commissioner (Appeals) vide the impugned order, rejected their appeal on the ground that the amount of refund sought to be sanctioned represents duty of customs i.e. CVD and subsequent letter dated 06.06.2014 cannot be treated as duty paid under protest. Hence, the present appeal. 3. Heard both the parties and perused the material on record. 4.1 Sh. P. S. Pruthi, the learned Consultant appears on behalf of the appellant and submits that in the present case, duty of customs i.e. CVD was not leviable as per the decision of Hon ble Apex Court in the case of SRF Limited (cited supra). He further submits that the amount was paid under duress and the said amount was mere deposit having been collected without authority of law and would not attract any limitation period. In this regard, he places reliance on the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nai) Kodak India Ltd vs. CCE, Indore 2012 (282) ELT 478 (Tri. Del.) He further submits that in the present case, duty was not payable but was paid only on the insistence of the department and no show cause notice was issued, refund claim did not pertain to routine payment of duty, even Rule 233 (B) of the Central Excise Rules, 1944 was non- existent; hence, the abovementioned judgments are squarely applicable to the present case. 4.4 The learned Consultant further submits that the duty of customs is payable by the importer and the department has no authority to recover the same from the appellant who is a custom broker; even otherwise, the duty cannot be recovered from the custom broker as his liability ceased the moment the goods were cleared from Customs. In this regard, he relies on the following judgments: K.M. Mohammed Ghouse Co. vs. ACCE 1979 (4) ELT J683 (Mad.) CC vs. Trivandrum Rubber Works Ltd 199 (106) ELT 9 (SC) Rado Impex Logistics Pvt Ltd vs. CC 2020 (374) ELT 95 (Tri. Hyd.) 4.5 Further, the learned Consultant has prayed that in terms of Section 27A of the Customs Act, the appellant is entitled to get the interest along with the delayed refund. 4.6 The learned Consulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed supra) wherein the Hon ble High Court has held as under: 12. There is no dispute about the applicability of SRF Ltd. (supra); indeed the Revenue s refrain during the hearing was that the amounts could not be refunded because the claims were time-barred and that the petitioner has an alternative remedy. This Court is of opinion that the plea of alternative remedy- an unoriginal and frequently used stereotypical defence by public bodies - in such cases at least dodges the crux of any dispute, i.e. the liability of the concerned public body or agency on merits. Sans any dispute with respect to facts, this Court finds it entirely unpersuasive, since Article 144 of the Constitution, compels all authorities to give effect to the law declared by the Supreme Court (as in this case, the SRF Limited judgment). The other plea which the Customs had relied on, to defeat the petitioner s refund application was Section 27(3) which confines refunds to the situations contemplated in Section 27(2), notwithstanding any judgment, order or decree of the Court. This Court is at a loss to observe the relevance of that reasoning, given that SRF Limited (supra) had ruled in principle that import implied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty cannot be confirmed. The private note books and the registers will have no evidentiary value in the absence of corroboration. 8. Further, we find that the appellant vide letter dated 06.06.2014 have lodged protest, though the word Under Protest was not specifically written in the said letter, but the spirit of the contents of the letter shows that it was the protest because in the Customs Act as well as in the Central Excise Act, no format is prescribed for lodging the protest. In this regard, we may refer to the judgment of the Hon ble P H High Court in the case of Chandigarh-I vs. Ind Swift Lands Ltd (cited supra) wherein it was held as under: 10. The second proviso furnishes a complete answer in favour of the assessee. It states that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty, has been paid under protest. Even assuming that the application for refund of amounts paid in such circumstances, is to be made under Section 11B(l), in the present case the application would not be barred by limitation as the amounts were paid under protest. The period of limitation, if any, therefore, would clearly be inapplicable to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure for payment of duty under protest in respect of routine clearances are not directly applicable to the issue in dispute. The appellants have admittedly lodged their protest and there is no dispute about the same. The procedural law is always subservient to and is in aid to justice delivery. Interpretation of the same so as to deny the substantial benefit of law to the assessee cannot be held to be aim of such procedural laws. As such, apart from holding that provisions of Rule 233(B) were not directly applicable to the present situation, I find that deposit having been made under protest, the period of limitation would not apply. 7. Even when viewed from other angle, the appellants had deposited the said payment, when there was no confirmation of demand. Even subsequent to the said deposit, no show cause notice stand issued to the appellants proposing appropriation of the said deposit made by them. The other show cause notice issued for confirmation of demand, stands vacated by the adjudicating authority and were accepted by the Revenue. The law is clear that the empty containers of modvatable raw materials do not attract duty at the time of their sale. When the appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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