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2022 (11) TMI 440 - AT - CustomsRefund of excess duty paid - Valuation of imported goods - 100% Knitted Polyester Fabrics - rejection of declared value - enhancement of the value on the basis of NIDB data - time limitation - refund also rejected on the ground of being pre-mature and on the ground of being incomplete - HELD THAT:- 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 case may be, do not apply when duty is paid under protest. The fourth proviso to sub-section (1) states that when duty becomes refundable as a consequence of judgment, decree, order or direction of the court, the limitation of one year or 6 months, as the case may be, shall be computed from the date of such judgement, decree or order. Both being proviso, it does give rise to some confusion. However, after the amendment to Section 27 by adding sub-section (1B) separately and using the phrase ‘Save as otherwise provided in this section’, the intention of the legislature to put the situation when duty has been paid under protest under 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 reassessment. The inaction on the side of the department cannot be a ground to reject the refund claim as premature. The other reason for rejection of the refund is that refund claim is incomplete and not supported by necessary documents - principles of unjust enrichment - HELD THAT:- 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 - the matter requires to be remanded to the original authority. The rejection of refund claim on the ground of time-bar and premature is set aside. The department is directed to complete the re-assessment and then process the refund claim. The appellant shall be given an opportunity to furnish documents to prove that refund is not hit by unjust enrichment - appeal allowed in part and part matter on remand.
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