TMI Blog2020 (11) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... to be decided by the Commissioner (Appeals) was whether in terms of the second proviso to section 27 (1) of the Customs Act, the limitation of filing the refund application within six months from the date of payment of duty would be applicable if an appeal had been filed against the order of assessment as that may amount to payment of duty under protest. The Commissioner (Appeals) was not required to examine whether the fourth proviso to section 27 (1) of the Customs Act would apply or not. The fourth proviso to section 27 (1) of the Act deals with an entirely different situation where the duty becomes refundable as a consequence of a judgment, decree, order or direction of the appellate authority, the appellate tribunal or any court. In such a situation, the limitation of six months shall be computed from the date of such judgment, decree or direction - It needs to be noted that application filed by the Appellant for refund of duty was not as a consequence of any judgment, decree, order or direction of the appellate authority, appellate tribunal or any court. The Tribunal in the present case, while remanding the matter to the Commissioner (Appeals) had examined the second provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal before the Commissioner (Appeals), who by order dated August 20, 2007 remanded the matter to the Adjudicating Authority to assess the goods after verifying the data submitted by the Appellant and after complying with the principles of natural justice. 4. This time, the Assistant Commissioner of Customs by order dated April 23, 2009 ordered that the price may be enhanced to 46% of the global price list for the years 2000 to 2008. This order dated April 23, 2009 was accepted by both the Appellant and the Department. 5. The Appellant, thereafter filed a refund claim on April 12, 2010 under section 27 (1) of the Customs Act since duty had been paid on 58% loaded value. 6. A Show Cause Notice dated June 14, 2010 was issued to the Appellant proposing to reject the refund claim on the following grounds: (i) The Appellant had not submitted the re-assessed copy of the Bills of Entry, in the absence of which the claim for refund was not maintainable; (ii) The Appellant had not submitted any evidence that payment of duty was made under protest and so the refund claim was barred by limitation provided under section 27 of the Customs Act. 7. The Appellant filed a reply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect that limitation will not apply when the duty has been paid under protest. Infact, we find that the 4th proviso to section 27 (1) is to the effect that where the duty become refundable as a consequence of judgment, decree, order direction of the appellant 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. However, we note that the said proviso is applicable only when the refund arises as a consequence of the order passed by the higher appellate authority. In that case, the assessee is required to file refund application within a period of one year of six months from the date of order. However, we find that the present refund application has not arisen as a consequence of any order passed by the higher appellate forum. Commissioner (Appeals) in his order dated 28.08.07 simplicitor remanded the matter to the original adjudicating authority to pass a denovo order. As such, it cannot be clearly concluded that the refund has not arisen out of order in appeal and it is only after the denovo proceedings were finally concluded by the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir claim at the relevant point of time that such duty was paid by them under protest, I find that the party has failed to place any such evidence on record from which it can categorically be deciphered that such amount of Customs Duty to the tune of ₹ 46,53,86,615/- was paid by them under protest. 8. On the contrary, vide their written submissions dated 19.08.2019, they have argued on the issue that SVB Order dated 26.08.2004 was challenged by way of an appeal implies that all the duties paid during pendency of such appellate proceedings should be treated/ deemed to have been paid under protest. This also indicates that the parties does not have any such documentary evidence on the basis of which it can be concluded that payment of Customs Duty was made under protest. 9. Now coming to the plea of the party that they challenged the SVB Order dated 26.08.2004 which itself implies that the duty was paid by them under protest, I find that the Hon ble Tribunal, vide the said Order had directed that such plea of the party needs to be analysed in the light of various decisions, which may be brought to the notice by the party herein. 10. In this regard, I note that in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RFB Rig Corporation LLC vs. CC (Air Cargo Complex), Chennai 2018 (359) ELT 219 (Tri.-Chennai) g) Commissioner Central Excise Commissionerate, Chandigarh-I vs. M/s Ind Swift Lands Ltd., 2017 (2)-TMI-23- Punjab and Haryana High Court; (ii) No time limit is prescribed for filing refund claims for duty paid under protest. The second proviso to section 27(1) of the Customs Act categorically provides that the time limit under section 27(1) shall not apply where duty has been paid under protest; and (iii) Even with the insertion of the fourth proviso to section 27(1) of the Customs Act with effect from May 11, 2007, it would be incorrect in law to state that a time limit has been prescribed for refund of claims when duty has been paid under protest. In this connection, reliance has been placed on the decision of the Punjab and Haryana High Court in Malwa Industries Ltd., vs. Union of India 2018 (361) ELT 81 (P H) . 13. Shri Sunil Kumar, learned Authorized Representative of the Department has, however, supported the impugned order and made the following submissions: (i) The Appellant failed to substantiate that duty was paid under protest by adducing documentary evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected but the Tribunal, in the appeal filed by the Appellant, remanded the matter to the Commissioner (Appeals). 17. The gist of the decision dated April 13, 2016 of the Tribunal is as follows:- (i) Section 27(1) of the Customs Act contemplates that a refund application has to be filed before the expiry of six months from the date of payment of duty by the assessee; (ii) However, in view of the provisions of the second proviso to section 27(1) of the Customs Act, this limitation of six months shall not apply where the duty has been paid under protest; (iii) There is no clear finding by the Adjudicating Authority that duty was paid under protest; (iv) The fourth proviso to section 27(1) of the Customs Act, provides 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 six months shall be computed from the date of such judgment, decree, order or direction. In the present case, the refund application has not been filed as a consequence of any order passed by the Appellate Forum, because the Commissioner (Appeals) merely remanded the matter to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: xxxxxxxxxx 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: xxxxxxxx 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. 20. It needs to be noted that the fourth proviso to section 27(1) of the Customs Act was inserted with effect from May 11, 2007 by section 96 of the Finance Act, 2007. 21. A perusal of section 27 (1) of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y way of appeal, revision or in the higher courts, he would naturally pay the duty under protest and it is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty. Paragraph 83 of the judgment, which deals with this aspect, is reproduced below: 83.It is then pointed out by the learned Counsel for the petitioners-appellants that if the above interpretation is placed upon amended Section 11B, a curious consequence will follow. It is submitted that a claim for refund has to be filed within six months from the relevant date according to Section 11B and the expression relevant date has been defined in Clause (B) of the Explanation appended to sub-section (1) of Section 11B to mean the date of payment of duty in cases other than those falling under Clauses (a), (b), (c), (d) and (e) of the said Explanation. It is submitted that Clauses (a) to (e) deal with certain specific situations whereas the one applicable in most cases is the date of payment. It is submitted that the appellate/revision proceedings, or for that matter proceedings in High Court/Supreme Court, take a number of years and by the time the claimant succeeds a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of limitation, if any, therefore, would clearly be inapplicable to the assessee. It was not contended before us that any other period of limitation applies and that under such a provision, the claim would be bared nevertheless. An act, including a payment can be made under protest in several ways. For the act to be under protest, it is not necessary that it be accompanied by the very words under protest whether an act is performed under protest or not must be determined on the basis on which it is performed, if the conduct indicates that it is not voluntary and is done out of compulsion it is under protest even within the meaning of these words in the second proviso to section 118 (1) of the Act which we will refer to shortly. (emphasis supplied) 30. The Tribunal in M/s Hutchison Max Telecom Pvt. Ltd., Bayshore Glass Trading Pvt. Ltd., Parle Biscuits Pvt. Ltd., Big Apple and RFB Rig Corporation LLC also took the same view. 31. Learned Authorised Representative of the Department has, however, placed reliance upon the decision of a learned Judge of the Madras High Court in DCW Limited . After reproducing paragraphs 83, 85, 86 of the Constitution Bench judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty is without any protest, the assessee s categorical stand is that it is deemed to be paid under protest. 6. Both the Revenue and assessee relied on the same decision of the Apex Court in the case of Mafatlal Industries Ltd. reported in 1997 (89) E.L.T. 247 (S.C.) in respect of their respective contentions whether the refund claim was made under protest or not. 7. Though it is sought to be contended on the side of the Revenue that the decision of the Supreme Court in the case cited above is more applicable to the case of the Revenue, we are not inclined to accept the same. The Apex Court in para 83 under an identical situation, dealt with the same issue, wherein also payment was made, when the assessee has been contesting the levy of duty for the earlier period. The Supreme Court is compelled to say that- Now, where a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect... That being th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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