TMI Blog2023 (2) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition, is required to be construed as payment under protest, is no longer res integra. Although the said decision was rendered in the context of Section 11B of the Central Excise Act, 1944, the second proviso to Section 11B of the Central Excise Act, 1944 is pari materia to second proviso of Section 27(1) of the Customs Act. The decision of learned Tribunal that the duty paid by the respondent on the enhanced value of the goods is required to be accepted as duty paid under protest, is agreed upon. Appeal dismissed. - CUSAA 33/2021, CM Nos.30448/2021 & 35279/2022 - - - Dated:- 25-1-2023 - HON'BLE MR. JUSTICE VIBHU BAKHRU AND HON'BLE MR. JUSTICE AMIT MAHAJAN For the Appellant Through: Mr. Satish Kumar, Adv. For the Respondent Through: Mr. Karan Sachdev, Mr. Yogendra Aldak, Mr. Agrim Arora, Mr. Sumit Khadaria Ms. Masooma Rizvi, Advs. VIBHU BAKHRU, J. 1. The Revenue has filed the present appeal under Section 130 of the Customs Act, 1962 (hereafter the Customs Act ) impugning an order dated 14.10.2020 Final Order No. C/A/51573/2020-CU(DB), hereafter the impugned order passed by the Customs Excise Service Tax Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue initiated an investigation as to whether the declared value of the goods imported was at an arm s length price. The Special Valuation Branch conducted the relevant enquiries as to the arm s length price of the goods imported by the respondent. Thereafter, the Adjudicating Authority passed an Order-in-Original dated 25/26.08.2004 enhancing the declared value of the goods by 65.75% in case of spare parts; 45% for imports made for STP Units; and, 26% for import of goods for demonstration purposes and for internal use by the respondent. 6.2 Aggrieved by the Order-in-Original dated 25/26.08.2004, the respondent filed an appeal before the Commissioner of Customs (Appeals), which was allowed. The Commissioner of Customs (Appeals) set aside the Order-in-Original dated 25/26.08.2004 and remanded the matter to the Adjudicating Authority to assess the arm s length of the imported goods after examining the relevant data submitted by the respondent. 6.3 Thereafter, the Adjudicating Authority assessed the value of the goods and by an order dated 23.04.2009 enhanced the declared value by 46% of the Global Price List for the relevant years 2004-07. 6.4 In view of the said order, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Customs- (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty 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 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. Provided further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y an Appellate Authority, Appellate Tribunal or any Court but had been passed by the Adjudicating Authority albeit on the matter being remanded by the Commissioner of Customs (Appeals), therefore, the fourth proviso to Section 27(1) of the Customs Act was not applicable. The only question to be examined was that whether the respondent is entitled to the benefit of the second proviso to Section 27(1) of the Customs Act, which would be available if the duty is paid under protest. 10. The Revenue accepted the said order and therefore, it is not open for the Revenue to now contend to the contrary. It is also relevant to note that Section 27(1) of the Customs Act was amended by the Finance Act, 2011 and the fourth proviso stands deleted. Section 27(1) of the Customs Act as currently in force reads as under: 27. Claim for refund of duty (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: P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners-appellants that if the above interpretation is placed upon amended Section 118, a curious consequence will follow. It is submitted that a claim for refund has to be filed within six months from the relevant date according to Section 11B and the expression relevant date has been defined in Clause (B) of the Explanation appended to subsection (1) of Section 11B to mean the date of payment of duty in cases other than those falling under Clauses (a), (b), (c), (d) and (e) of the said Explanation. It is submitted that Clauses (a) to (e) deal with certain specific situations whereas the one applicable in most cases is the date of payment. It is submitted that the appellate/revision proceedings, or for that matter proceedings in High Court/Supreme Court, take a number of years and by the time the claimant succeeds and asks for refund, his claim will be barred; it will be thrown out on the ground that it has not been filed within six months from the date of payment of duty. We think that the entire edifice of this argument is erected upon an incomplete reading of Section 11B. The second proviso to Section 11B (as amended in 1991) expressly provides that the limitation of six mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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