2021 (11) TMI 285 - AT - Customs

Refund claim - rejection of refund on the ground that no appeal was filed against the Bills of Entry under Section 128 of the Customs Act, 1962, when the said Bills of Entry were re-assessed by way of amendment under Section 149 of the Customs Act, 1962 - HELD THAT - The Revenue against the sanction of the refund which arose out of re-assessment of the Bills of Entry, filed appeal before the Commissioner (Appeals), and the Commissioner (Appeals) accepted the appeal by holding that since the appellants have not filed appeals against the Bills of Entry the refund is not legal and correct. The refund was not filed against the assessment of Bills of Entry but the Bills of Entry were admittedly re-assessed by the assessing officer in terms of Section 149 of the Customs Act, 1962. Once, the Bills of Entry was reassessed by the Revenue thereafter if neither side is aggrieved with the said re-assessment, it attained finality. In the present case, the Revenue admittedly, amended the Bills of Entry by re-assessing the same under Section 149 of the Customs Act, 1962. Once, the Bills of Entry has been re-assessed and the refund is arising out of it, there is nothing exist against which any appeal need to be filed. Therefore, the contention of the Revenue that appellant has not filed appeal against the Bills of Entry is absolutely incorrect. Since the refund arising out of re-assessment of Bills of Entry neither side has grievance against such re-assessment of Bills of Entry, refund is clearly permissible - Appeal allowed - decided in favor of appellant.

Summary

Issues involved:
Whether a refund claim can be rejected on the ground of not filing an appeal against re-assessed Bills of Entry under Section 128 of the Customs Act, 1962.

Analysis:

Issue 1: Filing of Appeal against Bills of Entry Re-assessment
The appellant argued that since the department re-assessed the Bills of Entry under Section 149 of the Customs Act, 1962, after which the refund claim was filed, there was no need to file an appeal against the re-assessment. The appellant cited various judgments to support their claim, emphasizing that the Bills of Entry can be re-assessed not only under Section 128 but also under Sections 149 and 154. The appellant contended that the refund claim was valid as it arose from the re-assessment of the Bills of Entry, and there was no dispute between the parties regarding the re-assessment.

Issue 2: Revenue's Argument
On the other hand, the Revenue argued that the refund claim was not legal since the appellant did not file an appeal against the Bills of Entry. The Revenue relied on the judgment in the case of ITC Ltd., stating that a refund cannot be claimed without challenging the assessment of Bills of Entry. However, the Tribunal noted that in the present case, the re-assessment of Bills of Entry was done by the Revenue itself, and both parties accepted the re-assessment without any grievances.

Issue 3: Tribunal's Decision
After considering both parties' submissions and the relevant legal precedents, the Tribunal found that once the Bills of Entry were re-assessed by the Revenue, and both parties accepted the re-assessment, there was no need to file an appeal. The Tribunal emphasized that the refund claim arose from the re-assessment of Bills of Entry, and since there was no dispute between the parties regarding the re-assessment, the refund was permissible. The Tribunal referred to the judgment in the case of Dimension Data India Pvt. Ltd., which confirmed the permissibility of amending Bills of Entry under Section 149 of the Customs Act. Therefore, the Tribunal modified the impugned order and allowed the appeal, granting consequential relief as per the law.

In conclusion, the Tribunal held that the appellant's refund claim was valid, and there was no requirement to file an appeal against the re-assessed Bills of Entry under Section 128 of the Customs Act, 1962, as both parties accepted the re-assessment, making the refund permissible.

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