2023-VIL-962-CESTAT-KOL-CU
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CUSTOMS CESTAT Cases

Customs - Section 27 of the Customs Act, 1962 - Import of coal – Simultaneous benefit of Notification No. 46/2011-Cus dated 01/06/2011 and exemption Notification No. 12/2012-Cus dated 17/03/2012 - during the period March 2013 to September 2013, due to technical glitches in the Customs EDI system, simultaneous benefit of duty exemption vide Notification No. 46/2011-Cus and Notification No. 12/2012-Cus was not accessible - respondent paid the BCD component under protest at the time of the clearance of imported goods and sought refund later on – Dept appeal seeking to deny the refund on the ground that refund application being time barred and on the ground of non-challenge to the assessment order – HELD – the refund claim arose as a result of non-acceptance of admissible exemption notification benefits because of certain systems related dysfunction and non-upgradation thereof, at the relevant time of filing of the Bills of Entry - the adjudicating authority failed to take cognizance thereof and thus summarily rejected the refund claims as being time barred, as well as for non-filing of appeal, challenging the original assessment order - since the payment of duty was under protest, limitation clause is held not to be applicable in this case – the issue of non-challenge to the assessment order if of no material consequence for the present matter as it is an undisputed fact that the duty in respect of the subject import was paid under protest at the time of assessment of the bill of entry - The very fact that the duty was paid under protest itself implies that the assessment was disputed and unacceptable and therefore under challenge by the importer. Obviously therefore a question of a fresh challenge to the assessment order is uncalled for - there is no requirement of challenging the assessment separately once wherever the duty is paid under protest - the order of the lower authority is maintained and the appeal filed by the revenue is dismissed
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