2019 (11) TMI 71 - AT - Customs

Challenge to self assessment before the Commissioner appeals - scope of section 128 of the Customs Act, 1962 - HELD THAT - Issue is now settled by the decision of the Apex Court in case of ITC Limited 2019 (9) TMI 802 - SUPREME COURT where it was held that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund. The issue is squarely covered by the said decision of Apex Court. Since Commissioner (Appeals) has not decided the issue on merit and had disposed of the appeal stating that appeal do not lie against self assessment made, the matter needs to be remanded back for consideration of issues on merit - Appeal allowed by way of remand.

Summary

Issues:
1. Challenge of self-assessment before the Commissioner (Appeals) under Section 128 of the Customs Act, 1962.
2. Refund claim for excess duty paid due to incorrect assessment.
3. Appeal against the rejection of refund claim by the Commissioner (Appeals).

Analysis:
1. The appellants challenged the rejection of their appeal against the assessment of Bills of Entry based on self-assessment. The Commissioner (Appeals) rejected the appeal, stating that self-assessment cannot be challenged before the Commissioner (Appeals) as it falls outside the ambit of Section 128 of the Customs Act, 1962. However, the appellants sought a refund of excess duty paid due to incorrect assessment, citing the law laid down by the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd.

2. The appellants self-assessed two Bills of Entry, realizing later that they had overpaid duty due to an error in assessment based on MRP. They filed an appeal before the Commissioner (Appeals) to modify the assessment for a refund of the excess duty paid. The appellants argued that the self-assessed Bill of Entry is appealable, referring to various tribunal cases and the decision of the Hon'ble Bombay High Court in the case of Maharashtra Cylinders. They emphasized that the issue is now settled by the decision of the Hon'ble Apex Court in the case of ITC Limited.

3. The Hon'ble Supreme Court's decision in the case of M/s ITC clarified that self-assessment is an appealable order under the Customs Act. The Court held that any person aggrieved by a self-assessment order can appeal against it, including both the revenue and the assessee. The Court emphasized that the order of self-assessment is an order of assessment under Section 2(2) and is appealable under Section 128. Therefore, the appeals filed by the appellants were allowed, and the matter was remanded back to the Commissioner (Appeals) for consideration of the appeals on merits.

This detailed analysis of the judgment highlights the issues of challenging self-assessment, refund claims for excess duty paid, and the appeal process against rejection of refund claims, providing a comprehensive overview of the legal proceedings and decisions involved in the case.