Per P.G. Chacko : The present application seeks early disposal of the appeal. After hearing both sides and considering the submissions, we are of the view that, on the facts of this case, the case requires to be disposed of at the earliest. Further, having come across a judgment of the Hon'ble Supreme Court which squarely covers the issue involved in this case, we are inclined to take up the appeal for summary disposal. The application stands allowed at this stage. We have heard both sides, in the appeal as well.

2. After examining the records and considering the submissions, we notice that the application of the assessee for refund of additional duty of customs has been rejected by the lower authorities on two grounds i.e. (i) that the refund claim filed on 10.11.03 is barred by time, and (ii) the claimant is not eligible for exemption from payment of above duty under Notification 29/97-Cus. dt. 1.4.97 in respect of 'knitting machine' which they imported and cleared under Bill of Entry dated 19.11.01 under EPCG scheme. Learned Counsel has pointed out that two letters written by the assessee to the Customs authorities protesting against their proposal for denial of the benefit of the notification have not been accepted as "protest" for the purpose of considering their refund claim. We have come across these letters on record. One of these letters dated 29.11.01 was addressed to the Dy. Commissioner of Customs (EPCG) and the same clearly stated thus:

"However, as importers and EPCG licence holders, we do not agree with the above stand and submit that the machines imported are eligible for additional duty benefit."

The expression "above stand" used in this statement of the assessee is a reference to the department's proposal for denying the benefit of the above notification in respect of additional duty of customs on the knitting machine imported by them. The second letter on record is one dated 22.4.2002, again, addressed to the same Dy. Commissioner. This letter is still more categorical and contains the following averment:

"we protested against this and submitted a letter dated 29.11.2001 wherein we claimed exemption from the levy of additional duty of customs".

These letters have not entered into reckoning before the lower authorities. After examining the contents of these letters, we are satisfied that the assessee had categorically expressed their protest against assessment of the goods without granting the above benefit. Nevertheless, the original authority proceeded to treat the refund claim as time-barred, regardless of the fact that the assessee had paid additional duty of customs under protest. In this case, clearly, time-bar is not applicable to the refund claim in question.

3. The Hon'ble Supreme Court, in the case of CCE Vs. Rupa and Co. Ltd. reported in 2004 (63) RLT 467 (SC)=2004 (170) ELT 129 (SC), held that capital goods imported under EPCG scheme for manufacture of textile garments covered all machines required for ultimate manufacture of garments for knitting, dyeing/drying, compacting, stitching, cutting, manufacture of yarn and, accordingly, the benefit of exemption Notification 29/97-Cus. was allowed to M/s. Rupa Co. Ltd. In the instant case, the benefit of this notification was denied on the ground that knitting machine was not meant for use in the manufacture of garments. The authorities took the view that only those machines which were directly used in the manufacture of garments from processed yarns were covered by the notification. This view does not stand the test of the ruling given by the Hon'ble apex Court in the cited case.

4. It is noticed that the learned Commissioner (Appeals) relied on the Hon'ble Apex Court's judgment in the case of Priya Blue Industries Ltd. reported in 2004 (64) RLT 321 (SC)=2004 (172) ELT 145 and took the view that, as the assessment of the Bill of Entry was not challenged by the assessee, they were not entitled to any refund of duty. It is further noticed that this groun