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2024 (2) TMI 320 - AT - CustomsDoctrine of merger - Refund claim - refund hit by the limitation of time in spite of the importer having registered a ‘Protest’ at the time of paying a deposit towards duty prior to adjudication - Section 27 of the Customs Act 1962 - HELD THAT:- In Sai Exports [2022 (11) TMI 440 - CESTAT CHENNAI] it was held that the second proviso of sub-section (1) of Section 27 states that the limitation of one year will not apply when duty is paid under protest. The question is whether sub-section (1B) of Section 27 which states that the limitation of one year has to be computed from the date of judgment, decree or order of court would come into application even if the duty is paid under protest. An assessee can be pay duty ‘under protest’ by either filing a letter of protest as provided by the Rules or by filing an appeal against the order on the basis of which the duty has been deposited or by taking both the actions. Consequent to a letter of protest being filed the matter would come up for a decision before the appropriate forum and an order passed which automatically vacates the protest, whether the decision is in favour or against the assessee. If the order is in favour of the assessee he can file a refund claim within the statutory time period as per section 27 (1B) (b) of the Customs Act or if it goes against him he may file a further appeal against the said order as provided in law till the matter attains finality. The doctrine of merger which is a common law doctrine recognized by Courts on principles of propriety in the hierarchy of the justice delivery system protects the assessee’s claim for refund as per section 27(1B)(b) ibid, once the protest is vacated. The doctrine implies that the order passed by a lower authority would lose its finality and efficacy in favour of an order passed by a higher authority before whom correctness of such an order may have been assailed in appeal or revision. Hence once an order is passed in a matter where a protest is vacated by the issue of an order by the proper officer the second proviso to section 27(1) ceases to apply and section 27(1B)(b) takes over. The lower authority has taken a view which is reasonable, legal and proper - the impugned order merits to be upheld - appeal disposed off.
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