2021 (4) TMI 1086 - AT - Customs

Refund of Customs Duty - duty paid under protest - claim rejected on the ground that appellant has not challenged the assessment of Bill of Entry not got it reassessed before or after out of charge of goods - HELD THAT - Though the refund has been rejected by the original authority but the original authority has observed that the importer had an option to file an application for amendment of the Bill of Entry under Section 149 of the Customs Act, 1962 to rectify any mistake in the Bill of Entry based on the documents available at the time of importation but the learned Commissioner while passing the impugned order in para 12 denied the right of the appellant to seek amendment of Bill of Entry as permissible under Section 149 of the Customs Act, 1962. Further, it is found that the Revenue has not challenged the show-cause notice as well as the Order-in-Original allowing the option to the appellant to seek an amendment in the Bill of Entry as permissible under Section 149 of the Customs Act, 1962 but the same was suo moto set aside by the learned Commissioner which is against law as held in various decisions relied upon by the appellant. An identical issue has been considered by two Division Benches of this Tribunal in the case of M/S. CALISON FIBRES PVT LTD. VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , NHAVA SHEVA 2019 (7) TMI 1060 - CESTAT MUMBAI . In para 5 in the case of Calisons Fibres Pvt. Ltd., the Division Bench directed that the request for reassessment be treated as application under Section 149 of Customs Act, 1962 for amendment of Bill of Entry and accordingly, directed the proper officer to consider the said application and pass appropriate order in accordance with law after granting opportunity of hearing to the appellant. Appeal disposed off.

Summary

Issues:
Appeal against rejection of refund claim due to discrepancy in imported quantity and payment of Anti-Dumping Duty (ADD) based on Bill of Lading quantity instead of Invoice quantity.

Analysis:
1. The appellant imported Low Ash Metallurgical Coke (LAM Coke) from China with a quantity discrepancy between Bills of Lading and Invoices due to moisture content. Anti-Dumping Duty (ADD) was imposed @ US $25.20 per MT. The appellant paid duty under protest, claiming an excess payment of &8377; 9,41,005/-. The refund claim was rejected by the Assistant Commissioner for not challenging the assessment order. The Commissioner upheld the rejection citing the ITC Limited vs. CCE, Kolkata judgment.

2. The appellant argued that post-amendment of Customs Act in 2011, self-assessment does not require challenging, contrary to the ITC Limited judgment. The appellant requested a reassessment order under Section 17(4) but was issued a show-cause notice instead. The Commissioner denied the right to seek amendment under Section 149 of the Customs Act, which was considered impermissible. Various judicial decisions supported the appellant's argument on seeking amendment and claiming refund without time limit.

3. The Tribunal found the duty was paid under protest, and the appellant sought reassessment, but the refund claim was rejected without allowing the amendment under Section 149. The Commissioner's denial of the amendment right was deemed unsustainable. The Bombay High Court's distinction of the ITC Limited judgment supported the appellant's position. The Tribunal directed the original authority to treat the reassessment request as an application under Section 149 for amendment of Bill of Entry, setting aside the impugned order.

4. The Tribunal's decision aligned with previous judgments and clarified the legality of seeking amendment under Section 149 for refund claims. The appeal was allowed, directing the original authority to consider the appellant's request for reassessment as an application under Section 149 for amendment of Bill of Entry and pass an appropriate order after a hearing.

Conclusion:
The Tribunal set aside the impugned order, allowing the appeal and directing the original authority to treat the reassessment request as an application under Section 149 for amendment of Bill of Entry. The decision emphasized the legality of seeking amendment for refund claims without time constraints, aligning with established judicial precedents.