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13.It is difficult for this Court to accept that the payment of custom duty imposed pursuant to an order while appealing the same can be construed as payment of duty without protest. The very act of filing an appeal against an order imposing customs duty is a protest against the duty as assessed. The entire purpose of such an appeal is to seek reduction of the levy. It is, thus, obvious that the assessee does not accept the said levy and, payment of the same would necessarily have to be construed as payment under protest.

(Emphasis Supplied)

15.In view of the authoritative decision of the Supreme Court in Mafatlal Industries Ltd. v. Union of India (supra), the question whether payment of duty while appealing its imposition, is required to be construed as payment under protest, is no longer res integra. Although the said decision was rendered in the context of Section 11B of the Central Excise Act, 1944, the second proviso to Section 11B of the Central Excise Act, 1944 is pari material to second proviso of Section 27(1) of the Customs Act."

SLP filed by the revenue against this order of Hon'ble Delhi High Court has been dismissed as reported at [2024 (387) E.L.T. 517 (S.C.)] 4.10 Further in case of Mafatlal, referred in order of Hon'ble Delhi High Court following has been observed:

"85.The rule no doubt requires the assessee to mention the "grounds for payment of the duty under protest" but it does not empower the proper officer, to whom the letter of protest is given, to sit in judgment over the grounds. The assessee need not particularise the grounds of protest. It is open to him to say that according to him, the duty is not exigible according to law. All that 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.

UOI reported in 1997 (89) E.L.T. - 247 (S.C.) has observed that - "when a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest". Relying on these observations of Hon'ble Supreme Court, the Tribunal in the cases of CC (Prev.), Jamnagar v. Continental Petroleums Ltd., reported in 2009 (234) E.L.T. 333 (Tri.-Ahmd.) and CCE, Aurangabad v. Klasspak Pvt. Ltd. reported in 2005 (179) E.L.T. 365 (Tri.-Mumbai), has held that when matter is under litigation, payment of duty made is deemed to be payment under protest, even though there is no express mention of payment having been made under protest. Thus in this case, the debit of the disputed amount on 4-1-05 in RG 23A Pt. II account has to be treated as having been made under protest. Hon'ble Supreme Court in case of Dena Snuff (P) Ltd. v. CCE, Chandigarh reported in 2003 (157) E.L.T. 500 (S.C.) has held that when the duty is paid under protest, the period of limitation would start to run from the date of final decision in the assessee's own case. Since in this case, the appeal was decided by the Tribunal in favour of the Appellant, on 28-10-04, the limitation period for filing refund application under Section 11B has to be counted from 28-10-04 and since the refund application has been made on 10-11-04, the same is within time. Since the refund claim is of Cenvat credit debited on 4-1-05 in RG 23A Pt. II account, in view of clause (c) of 1st proviso to Section 11B(2) of principles of unjust enrichment will not be applicable.