2007 (1) TMI 84 - AT - Customs

Assessment order has not been reviewed nor modified, in an appeal so re-assessment is not permissible after clearance of goods Already assessed B/E can be amended if amendment is sought on basis of documents which were in existence at time of clearance So amendment is allowed

Summary

Issues Involved:
1. Eligibility for CENVAT credit of CVD paid using DEPB credit.
2. Request for re-assessment of imported goods.
3. Applicability of Section 17(4) and Section 149 of the Customs Act, 1962.
4. Finality of assessment orders and the scope for amendments.

Issue-wise Detailed Analysis:

1. Eligibility for CENVAT Credit of CVD Paid Using DEPB Credit:
The appellants, engaged in manufacturing brake assemblies, utilized DEPB credits to pay basic customs duty and sought to take CENVAT credit of the additional duty of customs (CVD). They relied on tribunal decisions in *Polyhose India Pvt. Ltd. v. CCE* and *SPIC Ltd. v. CC*, which allowed taking CENVAT credit of CVD paid using DEPB credit. However, Central Excise authorities initiated recovery proceedings, arguing that the inputs had not suffered CVD as per the Exim Policy provisions.

2. Request for Re-assessment of Imported Goods:
The appellants requested re-assessment of imported goods to pay CVD in cash, allowing re-credit in the DEPB book. The Commissioner of Customs (Appeal) denied this request, stating that once an assessment order is passed, duty is payable based on that order unless revised under Section 28 or modified in an appeal. The Commissioner cited the Supreme Court's decision in *Priya Blue Industries Ltd. v. CC (Preventive)*, which held that an unchallenged assessment order stands unless reviewed or appealed.

3. Applicability of Section 17(4) and Section 149 of the Customs Act, 1962:
The Commissioner found that Section 17(4) provided for re-assessment initiated by the department when discrepancies are found in the declarations or documents. The provision did not allow the importer to seek re-assessment or change the mode of payment of duty after the goods had been assessed and cleared. The appellants argued that they were not seeking re-assessment under Section 17(4) but rather an amendment to the Bills of Entry under Section 149, which allows amendments based on existing documentary evidence at the time of clearance.

4. Finality of Assessment Orders and Scope for Amendments:
The Commissioner upheld the finality of the assessment orders, citing *CCE Kanpur v. Flock (India) Pvt. Ltd.*, which held that once an assessment order is passed, it stands unless reviewed or appealed. However, the appellants invoked Section 149, arguing that amendments to Bills of Entry are permissible if based on existing documents. The Tribunal agreed with this interpretation, referencing previous decisions in *I.P. Rings Ltd. v. CC (AIR)* and *Man Industries (India) Ltd. v. CC (EP) Mumbai*, which supported the right to amend Bills of Entry under Section 149.

Conclusion:
The Tribunal concluded that the appellants could amend the Bills of Entry to pay CVD in cash and re-credit the DEPB book, as this was effectively revenue-neutral and supported by existing legal provisions and case law. The appeal was disposed of, allowing the appellants to file amended Bills of Entry for re-assessment and re-credit of DEPB.