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TMI Blog2003 (6) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, Mr. P.S. Raman, learned Counsel for the petitioner, referred to the decision of Apex Court in Mafatlal Industries Limited v. Union of India [ 1996 (12) TMI 50 - SUPREME COURT] . The Constitutional Bench of the Supreme Court, while dealing with the claim for refund under Section 11B of the Central Excise Act, Admittedly, in the present case, the petitioner has not made the payment of duty under protest and in that case, the period of limitation of six months will apply to the petitioner and the claim not being made within a period of six months from the date of payment has been rightly rejected by the respondent. There are no merits in the writ petition. The writ petition is dismissed. No costs. X X X X Extracts X X X X X X X X Extracts X X X X ..... oner as time-barred in terms of Section 27(1) of the Customs Act, 1962 (in short "the Act"). According to the petitioner, the items being imported of capital equipments, the question of passing of burden to the consumers does not arise and there is no question of unjust enrichment by the petitioner. As the petitioner paid the excess duty under wrong classification order of the Assessing Authority, the excess payment has to be refunded to the petitioner on account of the appeal being allowed. The petitioner has further stated that the refund of duty so paid is a matter of right to the petitioner and the question of applying Section 27 of the Act does not arise, since the petitioner has applied for refund immediately on receipt of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1994, the petitioner paid the duty and the goods were cleared. It is not disputed that the petitioner did not protest the duty while paying it. It is no doubt true that the petitioner preferred appeal against the classification and the Collector of Customs (Appeals) allowed the appeal and classified the goods under sub-heading 8417.90, as claimed by the petitioner, in his order, dated 15-3-1995. 6. Mr. P.S. Raman, the learned Counsel for the petitioner, contends that the petitioner had paid the customs duty as imposed by the Assessing Authority and that order has been set aside in the appeal and as such, the excess payment of duty made by the petitioner has to be refunded and the petitioner has applied for refund immediately on receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person; PROVIDED that where an application for refund has been made before the commencement of the Central Excise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Mafatlal Industries Limited v. Union of India [1997 (89) E.L.T. 247 (S.C.)]. The Constitutional Bench of the Supreme Court, while dealing with the claim for refund under Section 11B of the Central Excise Act, has held as follows : "83...... The second proviso to Section 11B (as amended in 1991) expressly provides that "the limitation of six months shall not apply where any duty has been paid under protest". Now, where a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /reference/writ petition, it will certainly be a payment under protest; in such a case, it is obvious, it would not be necessary to lodge the protest as provided by Rule 233B….." Their lordships of the Supreme Court have held that where a person proposes to contest his liability by way of appeal, revision or in the higher Courts, he would naturally pay the duty under protest and it is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification and the assessee need not particularise the grounds of protest and it is open to him to say that the duty is not exigible according to law and the acknowledgement of the letter of protest shall be the proof to show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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