Customs, Excise and Gold Tribunal - Mumbai
Parle Biscuits Pvt. Ltd. vs Commissioner Of Customs on 10 March, 2006
ORDER K.K. Agarwal, Member (T)
1. The short point involved in these appeals is that Commissioner (Appeals) has rejected the refund claims filed by the appellants in respect of duty paid by them at the time of presentation of the Bill of Entry which was disputed and later on allowed by the Commissioner (Appeals) with regard to dispute relating to classification. While the appellants claimed that since the assessment order was contested by them disputing the duty liability the payment of duty has to be treated as paid under protest and therefore the time-bar should not be applicable. The Commissioner (Appeals) on the other hand held that as per Supreme Court decision in Mafatlal Industries case reported at specially Paras 83, 84 & 86 it is obligatory that for payment of duty under protest the procedure under Rule 233B of the Central Excise Rules, 1944 should be followed.
2. Heard both parties.
3. The learned advocate for the appellants submitted that whenever an appeal is filed against the assessment order, the duty has to be treated as been paid under protest and placed reliance on the CEGAT decision in the case of Hutchisom Max Telecom Pvt. Ltd. v. Commissioner of Central Excise, Mumbai where it was held that filing of appeal itself amount to protest and refund is not to be denied on grounds of limitation when disallowance of benefit of notification challenged by appellant and Such benefit finally allowed by Tribunal. It was submitted that in their case the classification claimed by them which was rejected by the original authority has been upheld by Commissioner (Appeals) and therefore the refund cannot be denied on grounds of limitation. Reliance was also placed on the Tribunal decision in the case of G.S. Radiators v. Commissioner of Central Excise, Ludhiana where a similar view was taken.
4. Reference was also invited to the decision in the case of Steelworth Ltd. v. Commissioner of Customs, Calcutta wherein it was held that filing of appeal against classification adopted by the lower appellate authority is a form of protest only and refund cannot be denied on grounds of limitation. In yet another case of Nice Photo Lab v. Commissioner of Customs, Chennai it was held that time-bar was inapplicable in case refund raising out an order passed by the lower appellate authorities as refund will arise or not would be known only after the order granting refund has been passed.
5. The learned S.D.R. however, reiterated the decision of the Supreme Court and submitted that where the procedure under Rule 233B of the Central Excise Rules, 1944 was not followed the payment of duty cannot be considered to be under protest and therefore the refund has been correctly denied by the Commissioner (Appeals).
6. I have considered the submission made by both parties. I find that the Supreme Court decision in the Mafatlal case held that when duty is paid under the orders of the court the provision of Rule 233B will not apply and payment has to be treated as under protest. Paras 83, 84 and 86 were only referred to the certain apprehension raised by the counsel regarding sanction of refund due to delay in the decision by appellate authorities. The situation in the present case were before the Supreme Court and therefore, there is no finding in respect of such circumstances. Besides the refund is under the Customs Act where no procedure for the depositing duty under protest has been prescribed unlike Rule 233B in Central Excise Rules. Therefore as held in a series of Tribunal decision cited by the appellants the payment has to be considered as under protest and refund cannot be denied on this ground.
7. In view of above, I set aside the order of the Commissioner (Appeals) and hold that refund cannot be denied on the ground of time-bar if it is otherwise eligible.
8. Appeals are accordingly allowed in the above terms.
(Pronounced in Court)