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Commissioner of Customs (ACC) , Mumbai Versus M/s Aver Digital Imaging Inc.

2016 (9) TMI 413 - CESTAT MUMBAI

Refund claim - Section 27 of the Customs Act, 1962 – time-bar - duty under protest in respect of some Bills of Entry not paid – Held that: - it is not in dispute that irrespective of any type of record in the department, the register by whatever name it is called, the protest was recorded. Therefore, there is no dispute that the duty payment made by the respondent is under protest. It is settled legal position that in case of refund arising out of the order settling the demand matter, a period o .....

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stoms (Appeals), Airport, Mumbai, whereby the learned Commissioner (Appeals) set aside the Order-in-Original No. S/3-Misc.55/2004 VA ACC dated 17.9.2004 and allowed the appeal filed by the respondent with consequential refund under Section 27 of the Customs Act, 1962. 2. The issue involved in the present case is if the refund filed by the respondent was time barred or otherwise. The adjudicating authority rejected the refund claim being time barred on the ground that the respondent has not paid .....

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(AR) appearing on behalf of the Revenue reiterated the grounds of appeal and submits that the adjudicating authority has rightly sanctioned the refund claim in respect of one Bill of Entry relying on the noting of the file that duty was paid under protest. However, in respect of other Bills of Entry, which was rejected as the duty was not paid under protest, the importer has not produced any protest letter against 19 Bills of Entry out of 22 Bills of Entry. Accordingly, the refund claim was reje .....

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proper and legal. 4. Shri Anil Balani, learned Advocate for the respondent submits that there is no dispute that whether it is called entry register or protest register, the payment of duty was under protest. It was in the knowledge of the department that the duty was paid under protest and refund cannot be time barred. He further submits that refund arose out of the litigation on classification, which was settled by this Tribunal vide the order No. CI/1464/WZB/2002 dated 18.5.2002. Therefore, f .....

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llant where out of 22 Bills of Entry, in 14 cases the protest were lodged and registered at Sr. No. 349, 351, 352, 353 and 364 of 2000 and at Sr. 33 of 2001 and it was also admitted by the deptt at no s XXXIX of the case file no. 337.200A. In case of remaining of Bills of Entry appellant could not show the lodging of any protest, but stated that they filed the protest in al the cases. From the original case file, where the refund claim was processed at initial stage at page one, it was clearly a .....

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