TMI Blog2024 (2) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 low ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Hon ble Tribunal sets aside an order, the directions in the said order are also set aside and the position prior to passing of such an order is restored. Further the amount paid is merely a sum deposited, hence not subject to unjust enrichment (UJE) and the provisions of section 27 are not attracted. They have also submitted a Chartered Accountant s certificate that the incidence of duty had not been passed to any person. He therefore prayed that the impugned order be set aside and the Asst. Commissioner directed to refund the amount with applicable interest. 3.2 The Learned AC (AR) stated on behalf of Revenue that all refunds under the Customs Act 1962 are strictly governed by Section 27 of the Act as stated in the Supreme Court judgment in Mafatlal Industries Ltd. Vs Union of India [1997 (89) E.L.T. 247 (S.C.)] and cited in the impugned order. Section 27(1B) mentions a limitation of one year from the date of a court/ tribunal order for filing a refund claim. The appellant has filed a claim after 20 months of the CESTAT order and hence were not eligible for refund. She prayed that the impugned order may be upheld. 4. We have carefully gone through the appeals and the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 25, the limitation of one year shall be computed from the date of issue of such order; (b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction; 6. The Constitution Bench decision of the Supreme Court in the case of Mafatlal Industries Ltd. (supra), at para 83 states that 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. It has hence come to stay as declared by the Hon ble Supreme Court that apart from any prescribed procedure like say by Rule 233B of Central Excise Rules, 1944, the filing of an appeal against an order is to be construed as payment of duty under protest. 7. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e governed by it. (emphasis applied) The learned Member hence concluded, it is clear from the above, that only in cases except as provided in Section 27, the newly added sub-section (1B) would apply. In other words, except for which has been provided in the section, the limitation of one year has to be computed from the date on which the judgment, decree or order of court has been passed. Thus, the operation of sub-section (1B) will not come into application when the duty is paid under protest. In Malwa Industries Ltd (supra) the Hon ble High Court took note of the opening phrase save as otherwise provided in this section to hold that under section 27 of the Customs Act, sub-section (1B) is subject to the second proviso to sub-section (1). 9. We find that 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 decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal 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. 13. Since the filing of the initial appeal itself means the registration of a protest , holding that the protest would survive for perpetuity till the concerned person seeks to enforce his right, cannot be the interpretation of section 27. Such an interpretation would render section 27(1B) (b) otiose. In High Court of Gujarat and another Vs Gujarat Kishan Mazdoor Panchayat and others [(2003) 4 SCC 712] the Apex Court held as under; 35. The Court while interpreting the provision of a statute, although, is not entitled to rewrite the statute itself, is not debarred from ironing out the creases . The court should always make an attempt to uphold the rules and interpret the same in such a manner which would make it workable. 36. It is also a well-settled principle of law that an attempt should be made to give effect to each and every word employed in a statute and such interpretation which would render a particular provision redundant or otiose should be av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants became entitled for consequential relief of refund of duty paid. The appellants filed refund claim on 21.2.2008, i.e., nearly nine months from the date of the order of the lower appellate authority. The lower authorities rejected the claim on the ground of time bar as the claim was not filed within six months as stipulated under Section 27 (1) of the Customs Act, 1962. The appellants argued that in respect of amounts paid under protest, the time limit prescribed under Section 27(1) of the Customs Act, 1962 does not apply and hence the authorities below have wrongly rejected the refund claims of the appellants as time-barred. The Tribunal held: 7. In this case, the protest was lodged by the appellants challenging the assessment made by the Department and claiming nil rate of duty. The dispute in assessment came to a finality once the matter was decided in favour of the appellants by the lower appellate authority and the department chose not to file any further appeal against the same. Once the very cause of the protest came to an end by the resolution of the assessment dispute at the hands of the lower appellate authority, it cannot be held that the protest would surv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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