2022 (4) TMI 1374 - HC - Customs

Refund of Customs Duty - seeking amendment in the bills of entry - Section 149 of the Customs Act, 1962 r/w Section 154 of the Customs Act - HELD THAT - The petitioner had imported the solar panel modules for the purpose of establishing 15 MW (AC) Grid Inter Active Solar PV Power Project in Ettankulam Village, Manoor Taluk, Tirunelveli District and had filed the Bill of Entries as detailed above. After the Bill of Entries were filed, a clarification was issued by the Board as detailed above. Sections 149 and 154 provide for a machinery for altering the assessment. These are two of the three methods available under the provisions of the Customs Act, 1962. If one of the three methods are available, the importer would be entitled to claim refund under Section 27 of the Customs Act, 1962. The Hon'ble Supreme Court in ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV 2019 (9) TMI 802 - SUPREME COURT has categorically stated that any person is aggrieved by an order, which would include an order of self- assessment he has to get the order modified under Section 128 or under other relevant provisions of the Customs Act before he makes a claim for refund. Therefore, as long as such an application is filed within the time stipulated under the provisions of the Act, it cannot be denied. The impugned order passed by the 2nd respondent dated 07.01.2019 is set aside and the case is remitted back to the 2nd respondent to pass a speaking order within a period of 3 months from the date of receipt of a copy of this order, after examining the contemporaneous documents, which were available at the time of import with the petitioner notwithstanding the fact that the petitioner had allegedly by mistake filed Bill of Entry under the Heading 8501 of the Customs Tariff Act, 1975 - Petition allowed by way of remand.

Issues:
1. Classification of imported goods under the Customs Tariff Act, 1975.
2. Request for amendment of Bill of Entries under Sections 149 and 154 of the Customs Act, 1962.
3. Entitlement to claim refund under Section 27 of the Customs Act, 1962.
4. Legal remedies available for rectification of assessment in the Bill of Entry.
5. Application of judicial precedents in similar cases.
6. Defense based on self-assessment and time latches.

Issue 1: Classification of imported goods under the Customs Tariff Act, 1975
The petitioner imported solar panel modules but mistakenly classified them under the wrong heading of the Customs Tariff Act, resulting in the payment of higher duty. The correct classification would have attracted a nil rate of duty. The Central Board of Indirect Taxes and Customs later clarified the classification, supporting the petitioner's contention that the goods should have been classified differently.

Issue 2: Request for amendment of Bill of Entries under Sections 149 and 154 of the Customs Act, 1962
The petitioner sought to amend the Bill of Entry under Section 149 of the Customs Act, 1962, for rectification. The petitioner relied on Section 154 for correcting clerical errors or arithmetical mistakes. The petitioner argued that the contemporaneous documents supported the correct classification, justifying the amendment.

Issue 3: Entitlement to claim refund under Section 27 of the Customs Act, 1962
The petitioner claimed a refund based on the correct classification of the imported goods. The petitioner's entitlement to a refund was contingent upon the successful amendment of the Bill of Entry under Sections 149 and 154 of the Customs Act, 1962, as per the provisions of Section 27.

Issue 4: Legal remedies available for rectification of assessment in the Bill of Entry
The petitioner contended that the assessment in the Bill of Entry could be rectified either through an appeal under Section 128 of the Customs Act, 1962, or through other provisions of the Act. The petitioner sought an opportunity to establish the correct classification despite the initial filing under the wrong heading.

Issue 5: Application of judicial precedents in similar cases
The petitioner cited various judicial precedents, including decisions from the High Courts and the Supreme Court, supporting the amendment of assessment in the Bill of Entry and the entitlement to claim refund based on correct classification of imported goods. These precedents provided legal support for the petitioner's arguments.

Issue 6: Defense based on self-assessment and time latches
The respondents argued that the goods were self-assessed, and therefore, reassessment was not warranted. They contended that the petitioner should have filed an appeal under Section 128 of the Customs Act, 1962, instead of seeking amendment of the Bill of Entry. The respondents also raised the defense of latches, highlighting the delay in seeking rectification.

In conclusion, the High Court set aside the impugned order and remitted the case back to the 2nd respondent to pass a speaking order within three months. The court directed the 2nd respondent to examine the contemporaneous documents available at the time of import and allow the petitioner to produce additional evidence, such as a Chartered Engineer Certificate. The court granted the petitioner the opportunity to amend the Bill of Entry under Section 149 of the Customs Act, 1962, and complete the assessment based on the correct classification of the imported goods. The writ petition was allowed, with no costs incurred.

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