2023 (4) TMI 353 - AT - Customs

Re-assessment of bill of entry - Interpretation of statute - sub-section (4) and (5) of Section 17 of the Customs Act, 1962 - re-assessment of bill of entry at his own level of the self assessed Bill of Entry - APTA benefit under Notification No. 72/2005-Cus on re assessment - Rule of Noscitur a Sociis (knowing by association) - HELD THAT - The issue is no more res-integra and has already been settled in ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV 2019 (9) TMI 802 - SUPREME COURT , in which the Apex Court while dealing with the procedure after introduction of self-assessment, has held that the order of self-assessment is also an order within the meaning of section and therefore would be appealable by any person aggrieved by it. Any person who is aggrieved by an order of self-assessment has to seek remedy either by going in an appeal or the re-assessment can be done as per sub-section (4) and (5) of Section 17 of the Customs Act, 1962. The expression or otherwise when read in conjunction with expressions like verification, examination or testing of the goods would lead to conclusion that it is the Proper Officer who has to come to the conclusion in some conditional or may be provisional assessment or investigation etc, that self assessment was incorrect. Nothing in the expression of Section 17(4) indicates that re-assessment of duty can be done at the request of party which has self-assessed its Bill of Entry and after clearance wants another benefit. Therefore, construing the expression or otherwise in Section 17 (4) by the rule of ''Noscitur a Sociis'', it is opined that material has to be of the nature found out on verification, examination or testing of the goods or otherwise (which expression) can include on investigation etc., indicating to the Proper Officer only that the self assessment was not done correctly. It is also found that the expression, without prejudice to any other action which may be taken under this Act , Clause indicates that Clause 17 (4) has been worded, inter alia, as an enforcement provision and cannot be construed liberally in favour of assessee so as to allow it to change its own self assessment. This also fortifies and supports our interpretation. Since, the re-assessment at the request of party under Section 17 (4) is not as per the outcome of any appeal filed by the party, as was the case in Order-In-AppealNo.510 to 534/2013/Cus/Commr(A)/Ahd. Dated 03.12.2013 as mentioned in para 36 of the Order-In-Original, it was improper on the part of adjudicating authority to re-assess bill of entry at the request of the party under Section 17(4). The party should have either availed appellate remedy, (if aggrieved) or could have sought timely modification of bill of entry as per applicable provisions. The order of Commissioner (Appeals) is upheld - appeal dismissed.

Summary

Issues Involved:

1. Whether the appellant was correct in claiming exemption from Special Additional Duty (SAD) under Notification No. 21/2012-Customs.
2. Whether the re-assessment of the Bill of Entry for availing APTA benefit under Notification No. 72/2005-Customs was permissible.

Summary:

Issue 1: Exemption from Special Additional Duty (SAD) under Notification No. 21/2012-Customs

The appellant imported Knitted Polyester Fabric under Bills of Entry dated 17-01-2013 and 22-01-2013, claiming exemption from 4% SAD under Notification No. 21/2012-Customs. The adjudicating authority found that the goods were chargeable to SAD @ 4% ad-valorem as per Notification No. 19/2006-Customs, due to amendments in the First Schedule to the Additional Duty of Excise (Goods of Special Importance) Act, 1957. Consequently, a short levy of duty amounting to Rs. 2,92,612.00 was identified, and a Show Cause Notice was issued. The authority re-assessed the Bills of Entry and determined the payable SAD as Rs. 2,87,163.00, ordering recovery of the same along with interest and imposing a penalty of Rs. 5,000.00 under Section 117 of the Customs Act, 1962.

Issue 2: Re-assessment of Bill of Entry for APTA Benefit

The appellant applied for amendment and re-assessment of the Bills of Entry to avail APTA benefit under Notification No. 72/2005-Customs, which was initially missed. The original adjudicating authority allowed re-assessment and granted the APTA benefit. However, the Commissioner (Appeals) overturned this decision, stating that the re-assessment was illegal as it was done 10 months after clearance and beyond the scope of the Show Cause Notice. The Commissioner (Appeals) held that the appellant should have sought modification of the Bill of Entry through proper appellate procedures.

Tribunal's Decision:

The Tribunal upheld the Commissioner (Appeals)'s decision, referencing the Supreme Court's ruling in ITC Ltd. vs. Commissioner of Central Excise, Kolkata-IV, which clarified that self-assessment orders are appealable. The Tribunal emphasized that re-assessment under Section 17(4) of the Customs Act, 1962, is the prerogative of the Proper Officer based on verification, examination, or testing of goods, and not at the request of the party post-clearance. The Tribunal concluded that the appellant should have either availed the appellate remedy or sought timely modification of the Bill of Entry. Consequently, the appeal was dismissed.

Conclusion:

The appeal was dismissed as the Tribunal found no merit in the appellant's claims. The re-assessment for APTA benefit was deemed improper, and the appellant's exemption claim from SAD was correctly denied.