Custom, Excise & Service Tax Tribunal
M/S. Cisco Systems India P Ltd vs Commissioner Of Central Excise on 13 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Customs Appeal No. 195 of 2011
Customs Stay Application No. 55930 of 2014
[Arising out of Order-In-Appeal No. CC(A) Cus/J8G/22/2011 dated 10.2.2011 passed by Commissioner of Customs (Appeals), , New Delhi ]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. B Ravichandran, Member (Technical)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
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Whether Their Lordships wish to see the fair copy of the Order?
Seen
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Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Cisco Systems India P Ltd. Appellants
Vs.
Commissioner of Central Excise Respondent
ST, N Delhi Appearance:
Shri B L Narasimbah and Ms Nupur Maheshwari, Advocates for the Appellants Shri Satyaveer Singh, AR for the Respondent CORAM:
Hon'ble Ms Archana Wadhwa, Member (Judicial) Hon'ble Mr. B Ravichandran, Member (Technical) Date of Hearing : 16.03.2016 Date of Decision: 13.04.2016 ORDER NO . FO/ 51232 /2016 Per Ms. Archana Wadhwa :
As per facts on record, the appellant is engaged in import of the goods from their parent company abroad during the period April, 2004 to June, 2008 and filed Bills of Entry from time to time which were finally assessed after loading the declared invoice price to the extent mentioned in the Bills of Entries. It is seen that after conducting the necessary inquiries, an order in original dated 26.8.04 was issued from the Special Valuation Branch officer vide which the declared value of the imported goods was rejected and the transaction value was allowed after loading the declared invoice value by 65.75 percent in case of imports of spare parts, 45% for imports made for STP units and 26% for the imports of goods for demonstration purposes and for the appellants own internal use in their premises. The order was valid for three years and was subject to review once in every three years failing which the order would stand expired. It was also ordered that all pending PD cases may be finalized on the above basis.
Being aggrieved by the order-in-original, the appellant filed an appeal before the Commissioner of Customs (Appeals), New Delhi who vide his Order-in-Appeal No. CC(A)/Cus/140/07 dated 20.8.2007 remanded the case back to the original adjudicating authority to assess the impugned goods after verifying the data submitted by the appellant. Accordingly denovo proceedings in the case were initiated and OIO No. SVB /Cus/JPK/02/2009 dated 23.4.2009 was issued wherein the declared price was rejected and it was further ordered that the declared price may be enhanced by 46% of GPL (Global Price: List) for the relevant year 2004 to 2007. An addendum to the OIO - dated 23.4.2009 was issued on 6.8.2009 extending the operation of order dated 23.4.2009 for three years to the imports made by the appellant for the years 2008 and onwards. The OIO No. SVB/Cus/JPK/02/2009 dated 23.4.2009 passed by the Assistant Commissioner of Customs, Special Valuation Branch, New Customs House, New Delhi stand accepted by the Revenue as also by the assessee. In view of these SVB orders, the appellant had, on 12.4.2010 filed a refund claim of excess payment of duty of Rs.46,53,86,615/- for the period April, 2004 to June, 2009 under Section 27(1)(b) of the Customs Act, 1962 (hereinafter referred to as the Act).
2. In the above backdrop, the appellants refund claim was sought to be rejected by the Revenue on the ground of limitation by entertaining a view that duty against the finally assessed Bill of Entry was paid during the period from 31.8.04 to 31.7.08 and the refund claim of the said payments stand made by the appellant on 12.4.10. As such, it was proposed to be rejected on the ground of limitation having been filed beyond the statutory period of 6 months from the date of payment of duty and in terms of provisions of section 27 (i)(b) of the Customs Act.
3. The appellant contested the said show cause notice on the ground that duty was being paid by them under protest, during the relevant period, by declaring the same as having been paid under protest on the TR 6 challan. In such a scenario the appellant took a stand that no limitation period would apply. In the alternative, they took a stand that fact of filing an appeal against the order of the original adjudicating authority loading the declared value, by itself, constitute protest and the excess duty is required to be considered as having been paid under protest. In that case also, the proviso to section 27 expressly stipulates that the period of limitation shall not apply where any duty has been paid under protest.
4. The original adjudicating authority did not accept the appellants stand by observing that the original order was passed on 26.8.04, loading the declared value for a period of 3 years and it was ordered that all pending PD cases to be finalized on the above basis and the appellant had not challenged the final assessment in the Bills of Entry before the appellate authority. He also observed that appellant had not lodged the protest against the subject Bills of Entries. Even though the appellant had challenged the order of SVB before Commissioner (Appeals), but has not challenged the orders under Bill of Entries which were finally assessed and neither applied for reassessment of the Bills of Entry. As such, by relying upon certain decision, they hold that inasmuch as the appellants did not lodge protest in respect of assessed Bills of Entries, the limitation would apply and they cannot be granted refund.
5. On appeal against the above order, Commissioner (Appeals) observed that proviso to section 27, which take into its ambit the fact of payment of duty under protest does not grant the entire time frame to file refund claim of duty paid in excess and said proviso cannot be interpreted independent of section 27. By referring to the decision of Honble Supreme Court in the case of Dena Snuff P Ltd. vs. CCE Chandigarh [2003 (157) ELT 500 (SC)]. He observed that when the duty has been paid under protest, the period of limitation would start to run from the date of final decision in the assessees own case. Accordingly, he observed that in the instant case, the assessees case was assessed finally on 29.4.09 by the SVB and the computation of limitation would start running from the said date. Accordingly, he held that inasmuch as the refund claim has been filed on 12.4.10 i.e. after 11 months and 19 days from 23.4.2009, which is beyond the period of 6 months stipulated under section 27 of the Act, the appellants right to file the refund claim extinguished after the expiry of 6 months. He also rejected the appellants plea of considering the assessment as provisional and to allow the refund claim under section 18 of the Act. He accordingly, rejected the appeal.
6. Hence the present appeal.
7. We have heard both the sides duly represented by Shri B L Narasimhan, and Ms. Nupur Maheshwari learned advocates appearing for the appellant and Shri Satyaveer Singh, Chief Commissioner (AR) appearing for the Revenue. The Revenue has also, subsequent to the hearing, filed written submission under the cover of their letter dated 21.3.2016.
8. After appreciating the submissions made by both the sides, we find that there is no factual dispute about passing of various orders by the authorities. On remand by the Commissioner (Appeals), the original adjudicating authority passed the order on 29.4.09, which order was acceptable to both the sides and as such attained finality. It is in terms of the said order of the original adjudicating authority that the refund claim stand filed by the appellant, which has been rejected on the ground of time bar.
9. As per the provisions of section 27 of Customs Act, 1962, refund claim is required to be filed before the expiry of six months from the date of payment made by the assessee. However, as per 2nd proviso to section 27(1)(b), such limitation of one year/ six months as the case may be, shall not apply when any duty and interest has been paid under protest. The appellants have strongly contended that duty stand paid by them under protest, during the pendency of the appeal before the Commissioner (Appeals) and inasmuch as such protest never stand vacated by the Revenue, no limitation would be available to the Revenue so as to deny the refund claim.
10. On the other hand, Revenues stand is that the dispute on the valuation, came to an end with effect from 23.4.09 with the passing of order by Asstt. Commissioner SVB allowing the declared value by 46% of the GPA. As such, limitation to file refund claim start running from the date of said order and refund claim filed on 12.4.2010 is barred by limitation.
11. We find that there is no clear finding by the authorities below on the fact of duty having been paid under protest. Even the appellant has not been placed on record any documentary evidence to reflect upon the said effect. On going through the second proviso to section 27, we find that same clearly lays down that the limitation period shall not apply when any duty has been paid under protest. The second proviso nowhere restricts the limitation to passing of any order by the original adjudicating authority nor refers to any alternative date. It simplicitor is to the effect that limitation will not apply when the duty has been paid under protest. Infact, we find that the 4th proviso to section 27(1) is to the effect that where the duty become refundable as a consequence of judgment, decree, order direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year or six months, as the case may be, shall be computed from the date of such judgment decree, order, or direction. However, we note that the said proviso is applicable only when the refund arises as a consequence of the order passed by the higher appellate authority. In that case, the assessee is required to file refund application within a period of one year or six months from the date of order.
However, we find that the present refund application has not arisen as a consequence of any order passed by the higher appellate forum. Commissioner (Appeals) in his order dated 20.8.07 simplicitor remanded the matter to the original adjudicating authority to pass a denovo order. As such, it cannot be clearly concluded that the refund has not arisen out of order in appeal and it is only after the denovo proceedings were finally concluded by the adjudicating authority vide his order dated 23.4.2009, that the appellant became entitled to the refund.
12. The legal question which arises is that when the duty was paid under protest whether the period of limitation as provided under section 27 would be applicable or not. We have already observed that the second proviso to section 27 (1) is simiplicitor to the effect that limitation will not be applicable where the duty has been paid under protest. The second proviso is neither extending the period nor limiting the same. As such, we agree with the learned Advocate that if the duty has been paid under protest and in the absence of any vacation of that protest by the authorities, the limitation period may not apply.
13. We also note the Revenue reliance on the Supreme Court decision in the case of M/s. Dena Snuff (P) Ltd. vs. CCE, Chandigarh as reported in [2003 (157) ELT 500 (SC)] and the revenues insistence on the issue that cause of action for the period of limitation would only arise from the date of decision in the assessees own case and inasmuch as the cause of action has arisen in the appellants case with the passing of the order by the Asstt. Commissioner on 23.3.2009, from which date the limitation period would start running. However, we have seen the said decision of the Honble Supreme Court which stand passed in different set of facts and circumstances. In that decision before the Supreme Court the refund application was filed by the assessee based upon the decision of the higher authorities in the case of another assessee. It was only in these circumstances, the Honble Supreme Court observed that the period of limitation would start to run from the date of final assessment in assessees own case. There was no issue of duty having been paid under protest before the Honble Supreme Court. Infact we find that the said decision of the Honble Supreme Court was considered by the Honble Kerala High Court in the case of Itel Industries Ltd. vs. CCE, Calicut [2014 (301) ELT 288 (Ker)] wherein it was distinguished and law was declared to the effect that limitation of one year is not applicable in case assessee pays the duty under protest. The said decision was also distinguished by the Honble Madras High Court in the case of CCE vs. KVR Construction -[2012 (26) STR 195 (Ker]) wherein it was held that once the amounts are paid under protest, the payment must be deemed to be under protest and no limitation is applicable in the light of second proviso to section 11B. The same ratio would apply to the refund claim made under section 27 of the Customs Act, if the duty was paid under protest.
14. On the other hand, reliance of the learned advocate on the Tribunals decision in the case of Bayshore Glass Trading Pvt. Ltd. vs. CC [2002 (148) ELT 1243 (Tri-Kolkatta)] as also in the case of Steelworth Ltd. vs. CC [2003 (159) ELT 551 (T)] is appropriate. Further the Bangaluru Tribunal in the case of Big Apple vs. CCE [2011-TIOL-163-CESTAT-BANG] also observed that where the duty stand paid under protest, and the violation stand challenged in the higher appellate forum, refund norms would not be hit by bar of limitation. To the same effect is the Honble Allahabad decision in the case of Indian Farmer Fertilizers Co-op Ltd. vs. Commr (K-II) Central Excise [2016 (331) ELT 386 (All)].
15. However, as already observed, the fact as to whether the duty was paid under protest or not does not stand substantiated before us by production of sufficient documentary evidence. As such, we are of the view that inasmuch as neither of the authorities below have given categorical finding that duty was actually paid under protest, the matter needs to be remanded to the original adjudicating authority for examining the above fact. In the alternative, the appellants plea that the fact of filing the appeal before the higher authorities itself amount to duty payment under protest, would also be considered by the adjudicating authorities in the light of various decisions, which may be brought to his notice by the assessee.
16. The appeal is disposed of in the above terms.
( pronounced in the open court on 13/04/2016 )
( B Ravichandran) ( Archana Wadhwa ) Member (Technical) Member(Judicial)
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( B Ravichandran )
Member(Technical)
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