TMI Blog2010 (10) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the respondent seeking refund of the excess duties paid by them. The same was rejected by the respondent on the ground that the claim was hit by limitation of time inasmuch as it was filed beyond the stipulated time limit of six months as laid down in Section 27(1) of the Customs Act, 1962. Aggrieved by such rejection of the refund claim by the adjudicating authority, the appellants preferred an appeal before the ld. Commissioner(Appeals). Ld. Commissioner(Appeals) after considering the submissions made by the Counsel before him upheld the order-in-original and rejection of refund claim as being time bared. Hence this appeal. 3. Ld. Counsel would draw my attention to the findings of both the lower authorities. It is his submission that both the lower authorities have accepted the fact that the dispute regarding the valuation is settled in their favour by the Final order of the Tribunal. The only dispute being whether the refund claim filed by the appellants is within the time as provided under second proviso to Section 27(1)(ii)(b) of the Act. He would submit that the fact that the appellants have paid the duty as assessed by the adjudicating authority and took the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order reads as under:- Provided also that where the duty becomes refundable as a consequence of judgment, decree, order or direction of the appellate authority, appellate Tribunal or any court, the limitation of one year or six months, as the case may be, shall be computed from the date of such judgment, decree, order or direction. It is also undisputed that this proviso came into statute w.e.f. 11/5/2007. It is to be seen that an earlier proviso to the same section reads as under:- Provided further that the limitation of one year or six months, as the case may be, shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (Emphasis supplied) It is seen from the first proviso, which has been reproduced just hereinabove, indicates that the limitation one year or six months, as the case may be, will not apply where any duty, interest has been paid under protest. The only question which begs for consideration in the case in hand is whether the duty paid by the appellants on the assessment of the Bill of Entry on enhancement of value has been paid under protestor not, to which the fact is that the appellants have undisputedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.Countering the arguments Shri Virag Gupta, learned DR,? reiterated the findings as contained in the impugned Order wherein the Commissioner (Appeals) has given his specific finding that filing of an appeal cannot be treated as duty paid under protest and that lodging of protest gives protection against the filing of the refund claim and it does not give any protection from filing the appeal beyond the time limit specified in the Customs Act. 4.We have considered the submissions of both the sides.? It has not been disputed by the Revenue that the Appellants had claimed the benefit of Notification No. 11/97 which had been denied to them while assessing the Bill of Entry. The Appellants had challenged the disallowance of the benefit of notification and finally the Appellate Tribunal allowed them the benefit of the said Notification. It is well settled law that filing of appeal is by itself is a protest. It is not the case of the Revenue that the Appellants had filed claim for refund of duty without challenging the assessment. This was the view expressed by the Tribunal in the case of Bayshore Glass Trading Pvt. Ltd. We, therefore, hold that the refund of the duty paid by the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the case of G.S. Radiators v. Commissioner of Central Excise, Ludhiana - 2005 (179) E.L.T. 222 (Tri. -Del.) where a similar view was taken. 4. Reference was also invited to the decision in the? case of Steelworth Ltd. v. Commissioner of Customs, Calcutta - 2003 (159) E.L.T. 551 (Tri. - Kolkata) wherein it was held that filing of appeal against classification adopted by the lower appellate authority is a form of protest only and refund cannot be denied on grounds of limitation. In yet another case of Nice Photo Lab v. Commissioner of Customs, Chennai - 2002 (141) E.L.T. 786 (Tri. - Chennai) it was held that time-bar was inapplicable in case refund raising out an order passed by the lower appellate authorities as refund will arise or not would be known only after the order granting refund has been passed. 5. The learned S.D.R. however, reiterated the decision? of the Supreme Court and submitted that where the procedure under Rule 233B of the Central Excise Rules, 1944 was not followed the payment of duty cannot be considered to be under protest and therefore the refund has been correctly denied by the Commissioner (Appeals). 6. I have considered the submission made by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
