Nayara Energy Ltd vs. Jamnagar (Prev) - (Customs, Excise and Service Tax Appellate Tribunal) (02 Dec 2021)

Even in absence of specific letter for payment of duty under protest, the payment of duty for which refund sought can be treated under protest

MANU/CS/0144/2021

Excise

The issue involved in the present case is that whether the Appellant's refund claim is hit by limitation and whether in absence of any specific letter for payment of duty under protest, the payment of duty for which refund sought for can be treated under protest.

The Appellant submits that, even though specific letter for payment of duty under protest was not filed but the same should be treated under protest particularly when no show cause notice was issued to appropriate amount to duty paid as deemed under protest. He submits that, the words "under protest" need not be specifically mentioned on the payment documents. He submits that, the payment was made during investigation, therefore, the said payment is deemed to be under protest. He further submits that, during investigation DRI was not entitled to collect any amount therefore, the amount of duty paid on the behest of DRI should be treated under protest. He further submits that, the amount paid is a deposit and not duty.

The refund was rejected being time barred as the same was filed after one year from the date of payment of duty. Both the lower authorities have held the refund as time bar on the ground that the appellant have not paid the duty "under protest" by submitting a letter of protest. It is the submission of the appellant that even though the letter of protest was not given but since the duty was paid during investigation and no show cause notice was issued in respect of such duty payment, the duty so paid should be deemed to be under protest.

Even if letter of protest is not filed, the Appellant is protesting the demand, the same should be treated under protest. Since, the main reason for holding the refund as time bar is the appellant has not filed a specific letter of protest for payment of duty. The expression of protest itself is payment under protest. However, in the facts of the case on the basis of correspondence made between the appellant and department, it is to be ascertained that the appellant have protested the payment of duty on demand of duty by the department at any point of time and on that basis the issue to be decided a fresh.

Accordingly, present Tribunal set aside the impugned order and the appeal is allowed by way of remand to the adjudicating authority for passing a fresh de novo order.

Tags : DUTY PAYMENT REFUND