The Chennai bench of Customs, Excise & Service Tax Appellate Tribunal ruled that the period of limitation under Section 27(1B) should apply when the refund claim of importer duty was paid under protest.
Appellant Gold Quest International Pvt. Ltd. filed a refund application nearly 20 months after the date of the Tribunal final order. The amount was initially paid by the importer M/s. ICICI Bank ‘under protest’ vide letter dated 16-June-2008 on behalf of the appellant ( buyer ) towards ‘gold and silver medallions’ imported vide bill of entry dt. 03-Jul-2007.
After due process of law, the original authority rejected the refund claim on the ground of time-bar and on the ground of unjust enrichment
Aggrieved, the assessee filed further appeal before the Commissioner ( Appeals ), who upheld the adjudication order and rejected the appeal of the appellant on the ground of time bar
Therefore the appellant filed another appeal before the tribunal.
During the proceedings P.R. Renganath, Counsel for appellant argued that where duty has been remitted under protest, limitation does not apply, as held in a number of cases.Hence section 27(1B) which mentions a limitation of one year from the date of a court/tribunal order for filing a refund claim, is excluded by the second proviso to section 27(1) which stipulates that the one-year period would not apply where duty has been paid under protest.
Anandalakshmi Ganeshram, Counsel for Revenue, submitted 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.
Therefore 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.
The tribunal observed that the appellant case had reached a finality after the Tribunal’s Final Order dated 04.11.2013 came to be accepted by the rival sides and was not further appealed against. Hence the matter has become final.
The appellant filed the impugned refund claim dated 08/07/2015 i.e. after a delay of about 20 months from the date of the order. Hence even, though the payment of duty by the importer was initially made under protest, the refund claim is clearly time barred in terms of Section 27(1B)(b) of the Customs Act, 1962
Consequently, the two-member bench of CESTAT tribunal M. Ajit Kumar, ( Accountant member ) and P. Dinesha, ( Judicial Member) held that the period of limitation under Section 27(1B) should apply when the refund claim of importer duty was paid under protest.
Therefore the bench rejected the appeal and upheld the order of lower authorities.
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