2020 (10) TMI 20 - AT - Customs

Refund - appeals rejected only on the ground that the appellant cannot challenge their own self-assessment before the Commissioner(Appeals) under Section 128 of the Customs Act, 1962 because self-assessment is not an assessment - HELD THAT - This issue is no more res integra and has been settled by the Hon ble Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV 2019 (9) TMI 802 - SUPREME COURT where it was held that The provisions under section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or reassessment proceedings at all. Matter remanded back to the Commissioner(Appeals) to decide the same on merits after affording an opportunity of hearing to the appellants and after complying with the principles of natural justice - appeal allowed by way of remand.

Summary

Issues:
1. Whether the appellant can challenge their own self-assessment before the Commissioner(Appeals) under Section 128 of the Customs Act, 1962.
2. Whether the impugned orders are sustainable in law.

Analysis:
Issue 1:
The appellant filed appeals against the impugned order rejecting both appeals, with the issue being identical in both cases. The appellant challenged the rejection, arguing that the Commissioner wrongly held they could not challenge their self-assessment order before the Commissioner(Appeals) under Section 128 of the Customs Act, 1962. The appellant contended that the decisions of the Tribunal cited were not applicable as they related to Central Excise provisions, different from the Customs Act, 1962. The appellant relied on a Tribunal decision in a similar case and the Apex Court's ruling in ITC Ltd. case to support their position.

Issue 2:
After considering submissions from both parties and reviewing the record, it was found that the Commissioner(Appeals) rejected the appeals based on the premise that self-assessment cannot be challenged. However, the Hon'ble Apex Court in the ITC Limited Vs. CCE, Kolkata-IV case clarified that self-assessment is appealable by any aggrieved party under the Customs Act, 1962. The Court emphasized that the order of self-assessment is indeed an assessment order and is appealable under Section 128. Therefore, the impugned orders were deemed unsustainable in law. Consequently, the orders were set aside, and the matter was remanded back to the Commissioner(Appeals) for a decision on merits after providing the appellants with a hearing and ensuring compliance with the principles of natural justice.