Per Moheb Ali M : The facts are that the appellants imported 2 Nos. of Used Bevel Gear Generators and sought clearance under B/E No. 2866 dated 9.5.95 declaring the value as Rs. 13,78,289/- on the basis of suppliers' invoice. The department did not accept the value declared. The appellant submitted a Chartered Engineers Certificate which indicated that the value of the generator in the year of manufacture was US $ 114,000/-. After allowing permissible deductions value is determined to be Rs. 34,32,967/-. The Assistant Commissioner thereupon passed an Order-in-Original determining the value as stated above. The Bill of Entry was assessed accordingly. The importer paid the duty and cleared the goods. The date of payment of duty is 30.3.95.

2. The Commissioner (A) before whom the appellants filed an appeal remanded the matter back to the Assistant Commissioner with certain directions while reassessing the Bill of Entry as per the direction of Commissioner (A), the Assistant Commissioner determined the value of the new machine as US $ 39000 in the year of manufacture, allowed appropriate depreciation and arrived at a value much lower than the one originally arrived at. The appellants therefore became entitled to a refund of excess duty paid. The claim was rejected on the ground that the claim was hit by time bar under Section 27 (3) read with Section 27 (1) of the Customs Act. The duty was paid on 30.3.95 as stated earlier and the refund application was made after the expiry of six months from the date of payment.

3. The appellant preferred an appeal to the Commissioner (A) who in the impugned order held that the appellant did not pay duty under protest in the first instance and therefore the bar of limitation under Section 27 of the Customs Act would apply. He observed that even when there is no provision for payment of duty under protest under the Customs Act, the appellant could have either written a letter protesting against the demand to pay duty or he could have indicated on the Bill of Entry that duty was being paid under protest. in the absence of such protestation the normal period of six months from the date of payment of duty would apply. He rejected the appeal. Hence this appeal.

4. Heard both sides.

5. We observe that the appellant paid the duty originally as assessed by the officer of customs. While doing so he did not register any protest. But he filed an appeal within time to the Commissioner (A) being aggrieved by the order of Assistant Commissioner. When someone files an appeal against an assessment order it is more than evident that he has paid duty under protest. There cannot be a greater indication of protest against an assessment order than an appeal against such an order. The duty is deemed to have been paid under protest. No separate letters of protest are required. Moreover the appellant is only seeking restitution of his rights when an order is passed in his favour. The claim is not time barred as it was paid under protest as indicated by the fact that the appellant went in appeal against the assessment order. This view was held in Mafatlal Industries Ltd. Vs. Union of India reported in 1996 (17) RLT 907 (SC)=1997 (89) ELT 247 (S.C.) in paragraph 146. Following the ratio of this decisions we allow the appeal and set aside the order of the Commissioner (A) with consequential relief if any in accordance with law.