2009 (7) TMI 386 - AT - Customs

Amendment to B/E - Claim for refund for CVD - Respondent later on realized that CVD at 16% has been wrongly paid instead of CVD @ 12% vide general exemption (52B) of Notification No. 4/06, dated 1-3-2006, as amended. Claim for refund for CVD denied on ground that assessment order was not challenged - Commissioner allowed the appeal with the findings that Section 149 of the Customs Act, 1962 provides for an amendment even after clearance of the goods if documentary evidences were in existence at the time of clearance and directed that the Bill of Entry be amended with CVD charges @ 12% in terms of Notification No. 4/2006. - On plain reading of the Section 149, it is clear that there is no limit fixed for amendment of document - Commissioner (Appeals) has rightly relied on Senka Carbon Pvt. Ltd. wherein it was held that Section 149 of the Customs Act, 1962 permits amendment of Bills of Entry even after clearance of goods provided amendment is made on the basis of documents existed at the time of clearance. - I do not find any infirmity in the impugned order and the same is upheld. Appeal filed by the revenue is rejected.

Summary

Issues:
Refund claim rejection based on Apex Court rulings, Maintainability of refund claim, Commissioner's authority under Section 149 of Customs Act, 1962

Refund Claim Rejection:
The appeal involves a refund claim filed by the respondent for excess CVD paid on imported goods. The respondent realized the error in paying CVD at 16% instead of the correct rate of 12% under a specific notification. The Central Revenue Control (CRC) rejected the refund claim citing the Apex Court rulings in the cases of Priya Blue and Flock India, stating that a refund claim is not maintainable unless the assessment order is challenged and modified. The original adjudicating authority also rejected the claim on the same grounds.

Commissioner's Authority under Section 149:
The respondent appealed to the Commissioner of Customs (Appeals), who allowed the appeal based on the judgment in Senka Carbon Pvt. Ltd. The Commissioner invoked Section 149 of the Customs Act, 1962, which allows for the amendment of documents even after goods clearance if supported by existing documentary evidence. The Commissioner directed the amendment of the Bill of Entry to reflect the correct CVD rate of 12%. The Revenue Department appealed this decision, arguing that the Commissioner had no authority under Section 149 to grant such directions.

Judgment and Analysis:
The Member (J) analyzed Section 149 of the Customs Act, noting that it does not impose a time limit for document amendments. The Member upheld the Commissioner's decision, citing the Senka Carbon Pvt. Ltd. case, which established that amendments can be made post-clearance based on documents existing at the time of clearance. The Member distinguished the present case from the rulings in Priya Blue and Flock India, stating that those rules were not applicable here. Consequently, the impugned order was upheld, and the Revenue's appeal was rejected on 27-7-2009. The judgment clarifies the authority of the Commissioner under Section 149 and the conditions for post-clearance amendments based on existing documentary evidence, providing a significant precedent for similar cases in customs matters.