2025-VIL-1378-CESTAT-KOL-CU

CUSTOMS CESTAT Cases

Customs – Refund of Additional Customs Duty (CVD) paid under protest, Exemption from payment of CVD, Time Limit for filing Refund claim – Appellant imported readymade garments through various ports and claimed exemption from the payment of additional customs duty (CVD) under the Customs Tariff Act, 1975 read with Notification No. 30/2004-C.E. dated 09.07.2004 - Since the Customs Authorities were unwilling to clear the consignments without payment of CVD, the appellant paid the duty 'under protest' and filed refund claims after the dispute was resolved in their favour by the Supreme Court - Whether the refund claims filed by the appellant are time-barred - HELD - When the duty is paid under protest, the question of time bar does not arise. The appellant had made payments of CVD under protest from September 2004 onwards across different ports, as evidenced by the protest letter and the subsequent diligent pursuit of the matter right up to the Hon'ble Supreme Court - When duty payments are made under protest, the assessments are provisional, and it is not necessary to separately challenge the assessment orders to obtain refund. The refund claims filed by the appellant within one year from the date of the Supreme Court judgment which resolved the dispute in their favour, cannot be rejected as time-barred - The rejection of the refund claim by the lower authorities on the ground of ‘time barred’, is not sustainable and set aside – The appeal is allowed - Whether the refund claims filed by the appellant are maintainable without challenging the assessment of the Bills of Entry - HELD - When the duty is paid under protest, the protest itself tantamounts to a challenge to the assessment, and further challenging/modification of the assessment for the purpose of refund is not warranted. Relying on various decisions, the Tribunal held that the refund claims cannot be rejected on the ground that the assessment of the Bills of Entry was not challenged by the appellant - Whether the refund claims can be rejected on the ground of non-availability of original TR-6 challans - HELD - The non-availability of original TR-6 challans is a hyper-technical objection, and refund cannot be denied on such ground. The Tribunal relied on the decision in M/s Shree Simandar Enterprises to hold that even if the original TR-6 challans are not available, the assessee cannot be denied refund when the payment of duty can be verified from the Department's records - Whether the appellant has passed on the burden of CVD to the consumers - HELD - The appellant had submitted a Chartered Accountant Certificate stating that the amount of CVD paid under protest had been shown under "loans and advances", was not inbuilt in the sale price of the garments, and the burden thereof had not been passed on to anyone. The authorities below had wrongly ignored this certificate and arbitrarily assumed that the appellant had passed on the incidence of CVD. The Chartered Accountant's Certificate, being a professional opinion, cannot be ignored, and the issue of 'unjust enrichment' is not applicable in this case.

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