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TMI Blog2015 (11) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... versy are that the appellants imported Ferro Molybdenum and filed two Bills of Entry dated 31.10.2008 and 19.11.2008. The goods were cleared on payment of basic duty @ 10% advolorem. Subsequent to clearance of the goods the appellants found that they were eligible for concessional basic duty @ 5% in terms of Notification No. 119/2008-Cus. dated 31.10.2008. Accordingly, they filed refund claims to that effect wherein Assistant Commissioner of Customs (Refunds) vide letter dated 25.11.2009 returned the claims as premature stating that the same might be filed after re-assessment of the bills of entry. The appellants thereafter approached the concerned Assessing Group along with documents for re-assessment. However, request of the appellants wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the lower authorities submits that Section 149 will not be attracted in view of the assessment order having become final, no claim for refund could have been entertained. 6. We have carefully considered the submissions made by both the sides and perused the relevant records. This Tribunal has in a plethora of decisions directed the Department to amend the Bills of Entry in terms of Section 149 of the Customs Act, 1962 based on documents which were in existence at the time of import and thereafter to cause re-assessment. In the instant case, the appellant is claiming amendment and consequent re-assessment of the bill of entrysince the notification No 119/2008 dated 31.10.2008 was in existence at the time of filing of bill of entry. 7. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a fraudulent intention. In the case of amended document under Section 149, the amendment has to be allowed when a request is based on documentary evidence, which was in existence at the time of clearance of the goods. We also find that the decision of Hon'ble High Court of Mumbai in Hero Cycles Ltd. Vs. Union of India (supra) relied upon by ld. Counsel is relevant and the relevant paragraphs 8 & 9 are reproduced below: "8. In the instant case, the Petitioners admittedly, based on the said notification were being granted benefit of the notification previous to the imports in issue and also subsequent to the imports in question. In other words, both the parties were aware of the said notifications. If the Petitioner on account of an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders of assessment which have been quoted in our judgment are modified." 9. In view of the decision of the Hon'ble High Court of Mumbai which is squarely applicable and the direction given was that the assessing officer has a duty to assess according to the law and refusal to amend the document would result in an irregular assessment and therefore what was held by Hon'ble High Court was that it was the duty of the officer to makeamendment. It has to be noted that in that case also the issue involved was difference in rate of duty. The SLP filed by the Revenue was dismissed. 10. In view of the fact that the Hon'ble High Court's decision supports the claim of the appellant and we also find that in terms of provisions of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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