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TMI Blog2024 (3) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... imported silk yarn and silk fabrics vide 18 Bills of Entry. The appellant claims that in order to save demurrage and other charges at the time of assessment of the Bills of Entry, they paid the disputed amount of CVD alongwith basic customs duty as "under protest". It is their case that no orders were subsequently issued with reference to the CVD paid under protest and as no speaking order was passed by the assessing officers as required under Section 17(5) of the Customs Act The Act. , they filed a refund claim for the amount of CVD paid for Rs. 76,62586/- on 16 June 2010, i.e. well within the limitation period as prescribed under Section 27 of the Act. 3. The refund claim filed by the assessee came to be rejected vide Order in Original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating authority thus proceeds to decide the subject refund matter on the merits of the issue, irrespective of the outcome of the finalization of the provisional assessment whereby import duties were said to be paid "under protest" in respect of each of the said imports. In fact, the adjudicating authority observes that the claimant have not submitted any reassessment order from the concerned Appraising Group in support of their claim. 6. At this juncture, a preliminary question arises as to the decision of the subject matter on merits, without finalization of the subject issue wherein the duty was paid "under protest". In terms of proviso to Section 27 of the Customs Act, it is categorical that the normal limitation thereof does not app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant has very categorically sought the issuance of reassessment orders or certificate for the subject Bills of Entry. 7. At this juncture in the first place let us understand "what is a protest." The Black's Law Dictionary- Seventh edition on page 1239 defines protest as a formal statement or action expressing dissent. It describes the term as a formal statement, disputing a debt's legality or validity but agreeing to make payment while reserving the right to recover the amount at a later time. It states the disputed debt to be described as "under Protest." 8. The Tribunal in the case of CCE, Chandigarh Vs. Iron Factory, Bhopal, 2004 (91) ECC 57 T had observed that the protest would stand vacated only once the question on which duty wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clearance of goods for home consumption in accordance with the scheme of the statue. It is therefore imperative to first finalize the assessment undertaken at the time of import. The decision on merits of the refund claim filed shall arise only thereafter once a speaking order in terms of Section 17(5) of the Customs Act has been issued finalising the assessment of the imported goods. In case the department is not able to lay its hands on the subject documents evidencing payment of duty under protest, we direct the department for the re-construction of the files and on the basis of documents filed by the appellant alongwith the subject refund claims filed by the importer/appellant. Under the circumstances, we set aside and quash the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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