Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Customs vs R.R. Trading Pvt. Ltd. on 22 May, 2003
Equivalent citations: 2003(160)ELT591(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. In these four stay applications, Revenue is seeking stay of operation of the Orders-in-Appeal dated 18-10-1992 by which the Commissioner (Appeals) has held that the claim of refund is not hit by time bar and in this regard has relied on large number of Apex Court and Tribunal judgments. Revenue contend that the application for refund ought to have been filed within six months from the date of payment of duty under Sub-section (1) of Section 27 of the Customs Act.
2. Respondents contend that they had filed an appeal against the assessment order and only after their appeal was allowed, they had processed their claim and, therefore, payment made was deemed to be under protest. In this regard, they rely on the judgments cited by the Commissioner. Further reliance is made on the judgment of Nepa Ltd. v. CCE, Indore [2003 (151) E.L.T. 576 (T) = 2003 (87) ECC 127 (Tri.)] and that of Final Order Nos. 69 & 70/2002 dated 23-1-2002 rendered by this Bench in the case of Nice Foto Lab v. CC, Chennai & CC, Chennai v. Dr. Reddy's Laboratories [2002 (141) E.L.T. 786 (Tribunal)].
3. Ld. Consultant submits that the claims were not hit by time-bar as they had been pursuing the legal remedy by relying on the judgments cited.
4. Ld. DR relies on the grounds made out. Both sides submit that the amounts involved are less than Rs. 2 lakhs.
5. We have carefully considered the submissions made and notice that the issue is no longer res integra. Therefore, with the consent of both sides, the main appeals themselves are taken up for decision as the issue lies on a short compass.
6. Respondents had contested the assessments which had been done on the filing of Bill of Entry and had filed the appeal before the Commissioner (Appeals) who allowed their appeal vide Order No. C3/192/O/2001-Sea C. Cus. 449/2001 dated 13-7-2001. They had filed fresh refund claims based on the Order-in-Appeal which were in their favour. The lower authority rejected the claim as time-bar. However, the Commissioner after due consideration and after referring to the citations relied clearly held that the appellants had contested the order-in-original i.e. assessments made on the basis of Bill of Entry by filing the appeal before the Commissioner (Appeals). The Commissioner (Appeals) had decided the issue in their favour and as a consequence they had processed their claim. In a circumstance like this, payments which had been made in terms of assessments is deemed to be under protest as has been held in the citations referred to including the judgment rendered in the case of Nepa Ltd. v CCE, Indore (supra) which relied on the Apex Court judgment rendered in India Piston ltd. v. CCE, 1990 (46) E.L.T. 3 (S.C.). We have also perused the impugned order of the Commissioner who has referred to the judgments rendered by the Apex Court in the case of Mafatlal Industries ltd. v. UOI - 1997 (89) E.L.T. 247 (S.C.) and that of the Tribunal rendered in the case of CCE, Nagpur v. Abhideep Chemicals Pvt. Ltd. - 2002 (143) E.L.T. 70 (T). We have also rendered a similar order in the case of Nice Foto Ltd. & Dr. Reddy's Laboratories (supra). In view of the settled judgments, we find that the Commissioner (Appeals) has rightly held that the claims were not hit by time-bar as the appellants had filed immediately an appeal before the Commissioner (Appeals) against the orders of assessment. The matter has to go back to the original authority, only for considering the aspect of unjust enrichment as has been directed by the Commissioner in the impugned order. We do not find any merit in these appeals. Therefore, all the four stay petitions and appeals are rejected.