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TMI Blog2019 (9) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Customs Tariff Heading 38159000 and paid appropriate amount of duty. Thereafter, they realised that they were entitled to the benefit of exemption Notification No. 12/2012 (sl.no. 228) whereby the BCD is reduced to 7.5%. Accordingly, they filed a refund application on 21.12.2017 within the period of limitation. The Learned Assistant Commissioner after examining the refund application sanctioned an amount of Rs. 15,71,430/- as refund. This order of the Assistant Commissioner was challenged by the Revenue before the First Appellate Authority who vide the impugned order dated 31.12.2018 allowed the Revenue's appeal and set aside the order-in-original. The department's ground for appeal before the Commissioner (Appeals) was that the Bill o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment or borne by him" can make an application. He submits that Section 17 of the Customs Act which dealt with assessment as well as Section 27 which dealt with refund were amended vide Finance Act, 2011. After this amendment Section 17 of the Customs Act provided for self assessment of duty by the importer and its verification, if felt necessary, by the proper officer. Assessment by the officer has been done away with and he could only verify and reassess the duty which has already assessed by the appellant. Correspondingly, Section 27 of the Act was modified enabling the person to claim refund of any duty or interest paid by him or borne by him. The requirement of claiming refund of duty paid "In pursuance of an assessment or" has been don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable on such goods. (2) The proper officer may verify the self-assessment of such goods and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. (3) For verification of self-assessment under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4) Where it is found on verification, examination or testing of the goods or otherwise that the self- assessment is not done correctly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assent is received. SECTION 27. Claim for refund of duty. (1) Any person claiming refund of any duty or interest,- (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest: 4. He would submit that the case of Priya Blue Industries (supra) pertains to un-amended version of Section 17 and Section 27. Thereafter, the system of self assessment was introduced in 2011. Even prior to the introduction of self assessment by amendment of Section 17 the department introduced a system of assessment by the Customs EDI sy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court through an SLP and the same has been admitted [2010 (256) ELT A57 (SC)]. Although the judgment has not been set aside/stayed, the matter has not yet reached the finality and question of law remains open before the Hon'ble Apex Court. Accordingly, the Lower First Appellate Authority has followed the judgment of the Hon'ble Apex Court in the case of Priya Blue Industries (supra) and allowed the appeal of the Revenue. 6. I have considered the arguments on both sides and perused the records. As far as this issue is concerned, there are three periods in the of the Customs Law and the procedures. Initially, as per Section 17 of the Customs Act, the officer was required to assess the duties of customs based on the declaration made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he importer. In fact, the bill of entry would never come to the notice of the assessing officer and therefore it was impossible for him to discharge his duties under Section 17. Therefore, if any declaration is done wrongly, the same gets cleared accordingly. The question for the Hon'ble High Court of Delhi in the case of Aman Medical Products (supra) was in such cases whether the importer needs to challenge the assessment order to claim the refund. The Hon'ble High Court of Delhi has observed that in such cases there is no order of assessment at all and therefore there is nothing which they can challenge. Accordingly, the refund can be granted to the appellant without challenging the order of assessment, which, in any case, does exist at a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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