TMI Blog2011 (8) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant. Shri Joseph Kodianthara, Sr. Advocate, for the Respondent. [Order]. This appeal is filed by the revenue against order-in-appeal No. 57/2009, dated 15-9-2009 vide which the learned Commissioner (Appeals) has set aside the order-in-original but rejected the refund claim filed by the respondents. The relevant facts that arise for consideration are that the respondent who is a 100% EOU had effected DTA sales of tea bags during the period 1-3-2000 to 30-6-2000 by short payment of customs duty and without payment of Special Additional Duty (SAD). Revenue was of the view that respondent is required to pay Special Additional Duty (SAD) due to enactment of Finance Act, 2000. By the time the department was aware of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants do not have a case. However, the question of time bar has not been properly dealt with by the lower authorities in the light of letter of protest given by the appellants. Therefore, we remand the case to the Original Authority to examine the refund claim on the limited question of time bar in the light of Section 11A of the Customs Act, 1962. We allow the appeal by way of remand. 2. Consequent to such remand order, the Original Authority again rejected the refund claim filed by the assessee on the ground, that time-bar demand paid voluntarily need not be refunded. On an appeal, Learned Commissioner (Appeals) set aside the order-in-original and allowed the refund claim. Learned SDR would reiterate the grounds of appeal whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue of time-bar. 6. In this case the issue is whether importer can claim refund of the amount paid voluntarily at a later date on the ground of time-bar, especially when the main issue stands settled against them, i.e. the amount paid is actually due to the exchequer. 7. Commissioner Appeal has not discussed this issue at all, for which the case was remanded. Commissioner (Appeals) has just mentioned that the demand was issued 14 months after payment of Duty. There was no demand of duty under Section 28 in this case as stated in the OIA. The letter issued by department informed the importer that there was a short levy on account of wrong duty and non-payment of SAD by importer. The demand was not issued, as it was known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. We are of the view that the levy in question is illegal, in view of the sales tax already levied on such DTA sales. Even though the demand in question is barred by limitation, on advice received and considering the fact that similar units in CEPZ have paid the amount, we are also arranging to pay the amount of Rs. 2,91,995/- under protest. We reserve our right to apply for refund of the amount in view of our stand on merits as above mentioned. Yours Faithfully, For Tata Tetley Limited, ![endif] S.B. Kamath, Manager Finance. 5. I have gone through the records of the case, grounds of appeal, orders of Hon ble CESTAT and submissions at the time of hearing. 6. It is seen that the learned Commissioner while setting asi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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