TMI Blog2003 (6) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... Ch. 8417.90. The respondent department assessed the goods under Heading 6903.10, as a result of which the petitioner was constrained to make excess payment of customs duty amounting to Rs. 5,12,462/-, which was based on the order of the respondent, dated 7-6-1994. Against the classification, the petitioner preferred an appeal to the Collector of Customs (Appeals) and the appellate authority set aside the order of the respondent, dated 7-6-1994 and classified the goods under sub-heading 8417.90 and that order became final. The petitioner filed refund application on 12-4-1995 claiming a sum of Rs. 5,92,642.95 with the respondent and after exchange of correspondence, the petitioner reduced his refund claim to Rs. 3,48,613.50, since the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-10-1995 only and after departmental queries, the petitioner admitted that he had availed 'Modvat on CVD' and reduced his claim from Rs. 5,92,642.95 to Rs. 3,48,613.50. When a claim is filed under Section 27 of the Act, it is governed by the conditions prescribed therein. Section 27 stipulates that the application for refund should be made before the expiry of six months from the date of payment of duty and the limitation shall not apply where any duty has been paid under protest. The petitioner did not pay the duty under protest as he accepted the classification at that time. The rejection of refund claim as time-barred is proper. 4.Heard both sides. 5.The petitioner imported spare parts under Bill of Entry, dated 20-1-1994 and claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on such duty :- (a) paid by him in pursuance of an order of assessment; or (b) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs :- (a) in the case of any import made by any individual for his personal use or by government or by any educational, research or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty, in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piry of six months from the date of payment of duty. The second proviso stipulates that the limitation of one year or six months as the case may be shall not apply where any duty has been paid under protest. Barring payment of duty paid under protest, for all other claims for refund of duty, the limitation period of one year or six months as the case may be will apply. 9.Insofar as the present case is concerned, the import of machinery is not by any individual or by Government or educational or charitable institution and hence the limitation for making claim of refund of duty is before the expiry of six months from the date of payment of duty. Admittedly, the petitioner has not paid the duty under protest and the second proviso will not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the proper officer is empowered to do is to acknowledge the letter of protest when delivered to him and that acknowledgement shall be the proof that the duty has been paid under protest. A reading of the rule shows that the procedure prescribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. The period of limitation of six months will then have no application to him. 86. We may clarify at this stage that when the duty is paid under the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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