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TMI Blog2024 (6) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, which is equivalent to excise duty liable on similar goods manufactured in India. 2.1. During the financial year 2011-12 to 2015-16, the ready-made garments falling under Chapter 62 of the Customs Tariff were exempt from levy of excise duty in terms of Notification No. 30/2004-CE dated 09.07.2004, subject to the condition that manufacturer of such goods did not avail credit of duty paid on inputs and capital goods in terms of the CENVAT Credit Rules, 2004. Since the goods imported by the respondent were manufactured outside India, therefore, the question of availing of CENVAT Credit on inputs and capital goods did not rise. Therefore, the respondent was under the bona fide belief that imported ready-made garments were exempted from levy of CVD. 2.2. However, the issue of exemption benefit was in dispute. Therefore, the respondent paid the CVD under protest. Thereafter, the Honourable Apex Court in the case of SRF Ltd. v. Commissioner of Customs, Chennai and anr. [2015-TIOL-74-SC-CUS] on 26.03.2015 decided the issue in favour of the respondent, which entitled the respondent to the benefit of Notification No. 30/2004-CE dated 09.07.2004. 3. Consequent to that decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the time-limit prescribed under Section 11B of the Central Excise Act of one year to file refund claim of duty paid is not applicable. Therefore, we hold that the refund claims filed by the respondent, under protest, are filed by the respondent in time. 11. Further, we find that another issue has taken by the Revenue is that as the assessment of bills of entry had become final, therefore, without challenging the assessment of bills of entry, the refund claims were not maintainable in the light of the decision of the Hon'ble Apex Court in the case of ITC Limited v. Commissioner of Central Excise, Kolkata-IV [2019-VIL-32-SC-CU]. 11.1. Again, we find that in this case, duty at the time of assessment had been paid by the respondent under protest. If duty paid is under protest, the same is deemed to be provisionally assessed, as protest has not been vacated by holding that duty paid by the respondent at the time of clearance of goods is correct. In these circumstances, the refund claims cannot be denied by holding that the assessment of the bills of entry had not been challenged by the respondent. 11.2. The Ld. Commissioner (Appeals) has examined all these issues in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority but found to be hit by the bar of unjust enrichment and hence the amounts have been directed to be credited to the Consumer Welfare Fund. The importers filed appeal before the lower appellate authority on the ground that the refund claims ought to have been paid over to them, as they had sufficient documentary evidence to establish that they have not passed on the incidence of duty on the goods to their customers but borne such duty burden themselves. The Commissioner (Appeals) however, instead of examining the issue raised before him in the appeal, went on holding that the appellants have no right to claim refund for the reasons that the orders of assessment have not been challenged. In the cases of Commissioner of Customs, Bangalore v. Spice Communication 2005 1190) E.LT. 340 (Tri- Bang.), Styleman v. Commissioner of Customs, Chennai - 2006 (198) E.L.T. 559 (Tri-Chennai) and Bharti Sons u. Commissioner of Central Excise, Amritsar - 2006 (206) E.L.T. 932 (Tri- Del.), it has been held that the payment of duty under protest is itself a challenge to the assessment on the Bill of Entry. The decisions of the Apex Court in Collector v. Flock (India) Pvt. Ltd. - 2000 (120) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved by the rejection of refund claim by the authorities below observing that the assessment of Bill of Entry has not been challenged by the appellant by filing appeal before appropriate forum. 2. Today, when the matter came up for hearing, learned counsel Shri T. Sundaranathan appeared and argued the matter. It is submitted by him that the appellant had paid duty under protest and the same has been recorded in the Bill of Entry. Hence there is no requirement for the appellant to challenge the same by filing an appeal. The department ought to have issued an order as to whether they dispute the protest made by the appellant or not. 3. The ld. AR Ms. K. Komathi appeared for the department. She submitted that since the authorities below have passed orders only on technical grounds, the matter has to be remanded to the adjudicating authority for considering the refund claim on merits. 4. Heard both sides. 5. After hearing the submissions and on perusal of records, we find that the appellant has paid duty under protest. Whenever an assessee pays duty under protest, it indicates a challenge by him on the demand of duty made by the department. Therefore it is for the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Central Excise, Kolkata reported in 2019 (368) ELT 216 (SC) would not apply. Accordingly, provisions of Circular No. 24/2004-Cus. Dt 18/03/2004 will also not applicable in such cases. As the department has not disputed that duty has been paid under protest for all 174 nos of Bills of Entry, no infirmity can be attributed to the impugned refund order for not fulfilling the requirement of challenge/modification of the Bills of Entry in terms of decision made in ITC Ltd. Vs. Commissioner of Central Excise, Kolkata reported in 2019 (368) ELT 216 (SC). Therefore, from the impugned Orders of the lower authority, I find that the lower adjudicating authority has discussed all the facts on merits and has finally concluded that the subject Refund claims are due in favor of the Importer/ respondent. Therefore, I don't find any reason to interfere in the impugned refund order passed by lower adjudicating authority and accordingly I uphold the same." 11.3. We do agree with the observations made by the Ld. Commissioner (Appeals) in the impugned order and hold that as there was a protest, duty was paid under protest, by the respondent. Therefore, the refund claims cannot be held a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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