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TMI Blog2024 (9) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004. The assessment was finalized in terms of Section 17 of the Customs Act, 1962. After a period of over one year, the department entertained the view that benefit of exemption from payment of CVD under the said notification was not available as the goods imported were manufactured abroad, thereby were incapable of fulfilling the condition regarding non-availment of Cenvat Credit. As per the appellant, the importers refused to pay CVD and the appellant was forced to pay CVD with interest. Consequently, the appellant paid duty of Rs.54,20,886/- (between 29th May 2014 to 2nd June 2014) and interest of Rs.75,543/- on 14th November, 2014 against seven TR-6 Challans (total amount deposited Rs.54,96,429/-) on their own account and lodged the protest with the Additional Commissioner of Customs, Amritsar on 06.06.2014. Thereafter, the Hon'ble Apex Court in the case of SRF Limited vs. CC, Chennai - 2015 (318) ELT 607 (SC) held that the benefit of CVD exemption will be available to such importer of final product when the question of availing Cenvat Credit on inputs does not arise. After the decision of Hon'ble Apex Court, the appellant filed an application seeking refund of Rs.54,96,429/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly convey the meaning that the payment was made 'under protest' and not voluntarily. Therefore, limitation period was not attracted. In this regard, he relies on decision of Hon'ble P&H High Court in the case of CCE, Chandigarh-I vs. Ind Swift Lands Ltd - 2017 (6) GSTL 21 (P&H). He further submits that under the Customs law, there is no a statutory rules or forms which stipulates the procedure for lodging protest in a particular manner and even in Central Excise also, there was no procedure for lodging protest. 4.3 The learned Consultant further submits that in the present case, the appellant paid the duty between 29th May 2014 to 2nd June 2014, but protest was lodged on 06.06.2014, but the learned Commissioner (Appeals) in the impugned order observed that protest should have been lodged before deposit of duty under protest and that amount already deposited cannot later on be considered as deposited under protest. He further submits that this observation of the learned Commissioner (Appeals) is unjust and uncalled for and to counter this observation, he relies on the following judgments: CCE vs. Amarjothi Spinning Mills Ltd - 2007 (209) ELT 304 (Tri. Chennai) Kodak India Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e importers M/s Jute Pack India and M/s Haryana Trading Company and availed the benefit of exemption of CVD under Notification No. 30/2004-CE dated 09.07.2004. After the expiry of more than one year, the department took a view that benefit of exemption from payment of CVD under the said notification was not available and recovered the same from the appellant along with interest. In the meantime, the appellant lodged the protest in the form of a letter dated 06.06.2014 stating that they are not liable to pay the duty and in case, the matter is decided in favour of the Assessee, the refund should be granted to the appellant. Thereafter, the Hon'ble Apex Court in the case of SRF Limited (cited supra) held that the benefit of CVD exemption is available to the importer of final product and after the decision of Hon'ble Apex Court, the appellant filed refund claim on 07.01.2016, which was rejected by both the authorities below as time barred. 7. We find that the amount paid by the appellant was not a duty, it was merely a deposit and therefore, would not attract any limitation period. In this regard, we rely on the judgment of Hon'ble Delhi High Court in the case of Telecare Network Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as duty. This fact is further fortified by the fact that the Department themselves vide their show cause notice dated 23-4-98 have raised demand of Rs. 21,76,531/-. Besides this, the question of time-bar does not arise as the amount deposited by the appellant cannot be treated to be a duty despite the fact that they might have reflected so in the TR challan. There was no adjudication or demand. Therefore, the provisions of unjust enrichment will not be attracted and as such, the question of time-bar also will not apply pursuant to the provisions relating to unjust enrichment. The alleged evasion of duty must be based on solid and acceptable evidence and cannot be levied to vagaries of doubt [Ambica Metal Works - 1990 (29) ECR 549]. Similarly in the case of Grewal Wheel India Ltd. reported in 2000 (116) E.L.T. 618 (T) = 1999 (34) RLT 662, the Tribunal held that the circumstantial evidence is not sufficient to establish clandestine removal and more positive evidence is necessary, the charge in the present case. The department has not brought on record any evidence to prove that the goods were removed from the factory premises without payment of duty. In the absence of any documenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not intimated payment to the Department in advance cannot be held against their entitlement to obtain refund as there has been substantial compliance with the requirement of the Rule 233B of the Central Excise Rules. Therefore their refund claim had been made in time. In the facts and circumstances, the Revenue appeal is dismissed." Similarly, in the case of Kodak India Ltd (cited supra), the principal bench of the Tribunal has held as under: "6. After hearing both sides, I find that admittedly, the payment of Rs. 51,483/- was made by the appellant on 24-6-1997 in respect of clearances effected during the period 1993-94 to 1996-97. As such, it is not the case of refund of duty paid at the time of clearances of goods itself. The fact that originally the clearances were being made without payment of duty and a lump sum duty was deposited later on is indicative of the fact that said deposits were made at the insistence of the Revenue. In any case within a period of six days from making the said payment, the appellants wrote a letter to the Revenue on 1-7-1997 itself lodging its protest. As such, the reliance by the Commissioner (Appeals) on the provisions of Rule 233(B) of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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