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2023 (10) TMI 1176 - AT - CustomsRefund claim - fulfilment of the condition of filing Appeals against the self-assessed Bills of Entry as a pre-requisite to entertain the refund claim or not - classification of goods Pisum Sativum Peas - to be classified under Sl No.20 or under Sl No.20A during the period under dispute? - interpretation of Notification No.50/2017 Cus dated30.6.2017, as amended by Notification Nos.84/2017 Cus dated 8.11.2017, 93/2017 Cus dated 21.12.2017 and 29/2018 Cus dated1.3.2018. Whether the present case calls for fulfilment of the condition of filing Appeals against the self-assessed Bills of Entry as a pre-requisite to entertain the refund claim as per the judgement in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV 2019 (9) TMI 802 - SUPREME COURT by the Hon ble Supreme Court being relied on heavily by the Revenue? - HELD THAT - The AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI 2009 (9) TMI 41 - DELHI HIGH COURT decision pertains to pre-amendment provisions and has been held as not correct by the Apex Court in the ITC case. The Micromax decisions of 2016 and 2019 MICROMAX INFORMATICS LIMITED VERSUS UNION OF INDIA OTHERS 2016 (3) TMI 431 - DELHI HIGH COURT and MICROMAX INFORMATICS LIMITED VERSUS THE UNION OF INDIA AND ORS. 2018 (12) TMI 802 - BOMBAY HIGH COURT respectively considered the amended provisions of Section 27 to arrive at the decisions. During the period under dispute the importers were without doubt covered by these decisions since the ITC judgement was rendered by the Supreme Court subsequently. In these decisions, it was held in respect of self-assessed Bills of Entry, the importers were not even required to file any application for re-assessment as was being directed vide the Board Circular 24/2004 Cus dated 18.3.2004. These decisions had effectively overruled the Board Circulars - In the present case, by documentary evidence the importers have proved that they have made the efforts to get the self-assessed Bills of Entry re-assessed as per the factual matrix. Whether the re-assessment request under Section 149 would meet the requirement of filing of Appeal, because the Hon ble Supreme Court in the ITC case has held that before the refund claim is entertained, Appeal has to be filed against the self-assessed Bills of Entry? - HELD THAT - From a careful analysis of section 149, it is found that under the said provision a discretion is vested on the proper officer to authorise amendment of any document after being presented in the customs house. However, as per the proviso, no such amendment shall be authorised after the imported goods have been cleared for home consumption or warehoused, etc. except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, etc. Thus, amendment of the Bill of Entry is clearly permissible even in a situation where the goods are cleared for home consumption - In the instant case, petitioner has not sought for any refund on the basis of the self-assessment. It has sought re-assessment upon amendment of the Bills of Entry by correcting the customs tariff head of the goods which would then facilitate the petitioner to seek a claim for refund. Madras High Court in M/S. HEWLETT PACKARD ENTERPRISE INDIA PRIVATE LIMITED VERSUS JOINT COMMISSIONER OF CUSTOMS, DEPUTY COMMISSIONER OF CUSTOMS, THE PRINCIPAL COMMISSIONER OF CUSTOMS, UNION OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE 2020 (10) TMI 970 - MADRAS HIGH COURT correctly held that in a case of correction of inadvertent error, the appropriate remedy would be seeking an amendment to the Bills of Entry and not fling of appeal because there is no legal flaw in the order of self-assessment amenable to appeal but only a factual mistake which can be rectified by way of amendment or correction. Such correction or amendment has been sought for by the petitioner on the basis of documents which were already in existence at the time of release of the goods for home consumption. This judgement after considering the Supreme Court s decision of ITC with detailed analysis, clearly holds that the self-assessed Bills of Entry can be entertained for re-assessment under Section 149. It holds that there is no specific requirement for an Appeal under Section 128 and relies on the decision of ITC. Against this decision of Bombay High Court, the Revenue filed SLP, which has been dismissed by the Supreme Court as reported in COMMISSIONER VERSUS DIMENSION DATA INDIA PRIVATE LTD. 2022 (2) TMI 750 - SC ORDER . Whether during the period under review the goods in question, Pisum Sativum Peas falling under Customs Tariff Heading 0713 10 00, are required to be assessed @ NIL rate of BCD in terms of Sl No.20 as claimed by the importers two appellants and five respondents or the goods are required to be assessed @50% rate of BCD in terms of Sl No.20A, as claimed by the Revenue? - HELD THAT - During the period under dispute, in view of the amendment carried out under Notification No.29/2018 dated 1.3.2018, it is amply clear that the product under dispute fell both under for Sl No.20 and Sl No.20A during the period under question. If it were not to be so, there are no reason for the Revenue to bring in the amendment by way of this Notification No.29/2018 Cus dated 1.3.2018 at all. This is rather a case of ambiguity in the Taxation liability and not a case of ambiguity on account of exemption granted. The Revenue cannot deny that during this period, any importer could have insisted on getting the NIL rate of BCD benefit by citing the co-existence of Sl No.20 and Sl No.20A for the brief period. The very fact that the Sl No.20 was further modified on 1.3.2018 to include Pisum Sativum in the exclusion list, it would clarify that this product was very much part of both Sl No.20 and Sl No.20A. If there is a scope to hold that the product may fall both under Sl No.20 as well as under Sl No.20A during the period under dispute. If so, as to whether the beneficial rate of BCD can be claimed by the importers or the same is not to be extended to them in terms of the Hon ble Supreme Court s judgement in the case of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY ORS. 2018 (7) TMI 1826 - SUPREME COURT as is being canvassed by the Revenue? - HELD THAT - During the period in question the Notification itself specifies two Effective Rates of 50% and NIL rate. This has resulted in ambiguity about as to whether the Taxing provision in this case is NIL or 50% BCD. As a matter of fact,the importers are not availing any exemption, but taking recourse to lesser Tax liability as per the Effective Rates specified in the Notification, which is beneficial to them, for which they are eligible to do so. The case law of Dilip Kumar, in fact helps the importer rather than the Revenue. The arguments of the Revenue cannot be agreed upon that the case law of Dilip Kumar would be of any help to them so as to overcome the dual rates of BCD specified during the period in question. The Notification No.50/2017 Cus dated 30.6.2017, being an Effective Rates Notification in respect of the goods in question, Pisum Sativum, rather helps the importer s case. Appeals of Revenue dismissed.
Issues Involved:
1. Filing Appeals Against Self-Assessed Bills of Entry for Refund Claims 2. Applicable Rate of Basic Customs Duty (BCD) for Pisum Sativum (Peas) 3. Eligibility for Beneficial Rate of BCD in Case of Ambiguity Summary: 1. Filing Appeals Against Self-Assessed Bills of Entry for Refund Claims: The main issue was whether the importers needed to file appeals against self-assessed Bills of Entry to claim refunds. The Revenue argued that the Supreme Court's decision in the ITC case required such appeals. However, the importers contended that they had sought re-assessment under Section 149 of the Customs Act, which should be considered equivalent to filing an appeal. The Tribunal concluded that the re-assessment requests made under Section 149 should be considered as fulfilling the requirement to challenge the self-assessed Bills of Entry. The Tribunal held that the importers were guided by prevailing High Court and Tribunal decisions, which did not require re-assessment for refund claims. 2. Applicable Rate of Basic Customs Duty (BCD) for Pisum Sativum (Peas): The Tribunal examined whether the goods in question, Pisum Sativum (Peas), should be assessed at a NIL rate of BCD or 50% BCD during the period under dispute. The relevant notifications were analyzed, showing that from 23.12.2017 to 28.02.2018, Peas were listed under both Sl No.20 (NIL rate) and Sl No.20A (50% rate). The Tribunal concluded that the goods fell under both entries during this period, creating ambiguity. The importers were thus entitled to choose the more beneficial rate (NIL rate) as per the principle established in various case laws, including Share Medical Care and Modi Xerox Ltd. 3. Eligibility for Beneficial Rate of BCD in Case of Ambiguity: The Tribunal addressed whether the importers could claim the beneficial rate of BCD in case of ambiguity, considering the Supreme Court's decision in the Dilip Kumar case. The Tribunal noted that the Dilip Kumar judgment emphasized strict interpretation of exemption notifications in favor of the Revenue. However, in this case, the ambiguity was in the taxation liability, not in the exemption conditions. Since the Effective Rate Notification No.50/2017 Cus specified two rates for Peas without any conditions, the ambiguity favored the importers. The Tribunal held that the case law of Dilip Kumar did not apply here, as the importers were not claiming an exemption but seeking a lower tax liability. Conclusion: - The Tribunal rejected the Revenue's argument that the importers had not filed appeals against the self-assessed Bills of Entry. - It was held that the goods in question were covered under both Sl No.20 and Sl No.20A during the disputed period, allowing the importers to choose the NIL rate of BCD. - The case law of Dilip Kumar was deemed inapplicable as the ambiguity was in the taxation rate, not in the exemption conditions. - The appeals filed by the importers were allowed, and those filed by the Revenue were dismissed, granting consequential relief to the importers. (Order pronounced in the open Court on 12/10/2023)
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