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TMI Blog2019 (9) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents to decide the same in accordance with law. It is directed that, as and when appeal is preferred by this petitioner against the assessment of the Bills of Entry filed by it, the same will be decided by the respondents in accordance with law - petition disposed off. - W.P.(C) 8592/2018 and CM Nos. 32966, 32697, 32698/2018 - - - Dated:- 20-9-2019 - MR. C. HARI SHANKAR J. Petitioner Through: Mr. Pawanshree Aggarwal, Mr. Akarsh Garg, Mr. Divyanshu Aggarwal and Ms. Sishmita Kumari, Advs. Respondents Through: Mr. Love Kumar Gupta for Mr. Sameer Sain, Standing Counsel-CBSE with Mr. H. Knon, Advs. O R D E R D.N. PATEL, CHIEF JUSTICE (ORAL) CM Nos. 32966/2019 and 32968/2018 (exemptions) 1. Exemption allowed, subject to all just exceptions. 2. The applications are disposed of. W.P.(C) 8592/2018 1. The petitioner, who is a holder of Import Export Code ( IEC ) No. 0609003640, imported raw cotton fiber, from Indonesia, under three Bills of Entry (hereinafter referred to as Bs/E ) of which one was filed on 9th March, 2002 and two were filed on 13th March, 2002. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund of the excess duty paid or to pass speaking order under Section 17(5) of the Customs Act, 1962 w.r.t. Bills of Entry wherein duty. paid UNDER PROTEST claiming the benefit of concessional rate of duty Sr. No. 115 of the Notfn No. 46/2011-Cus dated 01.06.2011- reg. Please refer to your letter ref. Nil dated 26.05.2017 addressed to the Chief Commissioner-of Customs, New Delhi on the subject cited above. 2. In this regard, it is to intimate that as per the available records in this office, the assessment of goods was accepted by you without protest and this office did not receive any request from you within the prescribed time in writing to pass a speaking order. Further, it is to bring to your kind notice that as per case laws, even in the absence of a speaking order under Section 17(5) of the Customs Act, the assessment on the Bill of Entry is itself appealable and the importer ought to have appealed against it. Yours faithfully Sd/- Assistant Commissioner of Customs Group III ICD, Tughlakabad, New Delhi (Emphasis supplied) 8. Aggrieved by the afore-extracted commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of assessment, dated 21st January, 1978, had attained finality. An appeal, preferred thereagainst, by Flock, was allowed, by the Collector of Central Excise (Appeals), who remanded the matter to the AC for reconsideration on merits. Aggrieved by the said decision of the Collector (Appeals), the Revenue appealed to the Customs Excise and Gold (Control) Appellate Tribunal, which dismissed the appeal of the Revenue vide Final Order dated 19th September, 1988. The Revenue appealed further, against this order of the Tribunal, before the Supreme Court. 13. The Supreme Court set out the issue, arising for consideration before it, thus (in para 5 of the report): On the facts stated in the foregoing paragraphs the question formulated earlier arises for determination. The solution of the point formulated depends on the answer to the question whether the jurisdiction of the Assistant Collector while considering an application for refund of duty paid is independent of the jurisdiction exercised by him in determining classification of the product in question. It is the contention of the respondent assessee that the jurisdiction to determine the validity and sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal was dismissed, against which Priya Blue preferred a Review Petition, which came to be rejected by a detailed judgement. Before the Supreme Court, the decision in Flock (India) (supra) was sought to be distinguished, by Priya Blue, by making a distinction between the provisions for refund, in the Customs Act, 1962, vis- -vis the corresponding provisions in the Central Excise Act, 1944. It was also sought to be contended that, if filing of a refund claim was permissible only after an appeal, against the order of assessment, was filed, the limitation prescribed, for filing refund claims, would be rendered otiose, as the appeal against the order of assessment, he filed, would never be decided within the period, within which the refund application was statutorily required to be preferred. Rejecting the submission, and reiterating the legal position as enunciated in Flock (India) (supra), the Supreme Court held, in paras 6 to 9 of the report, as under: 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any duty (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year. (b) in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: Provided that where an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Tribunal has referred to the cases of CCE, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285] and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), 2004 (172) E.L.T. 145 (S.C.). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and the party did not chose to exercise the statutory right of appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case. 6. We, therefore, answer the question framed by holding that the refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing any appeal, against the assessment of the B/E, could not be insisted upon. I. T. C. Ltd (supra) 22. The attempt, of this Court, to depart from the Flock (India) (supra) and Priya Blue (supra) principle, in cases of self-assessment of Bills of Entry, on the ground that, in such cases, no order of assessment, involving any lis between the importer-assessee in the Revenue, existed, stands authoritatively discountenanced by this recent pronouncement, by a bench of 3 Hon ble judges of the Supreme Court. The Supreme Court clearly holds, in this case, that assessment of duty, even if on self-assessment basis, is appealable and that, without referring any such appeal, no claim for refund of the duty, allegedly paid in excess, would lie. Paras 31 to 44 and 47 of the judgment in ITC Ltd. (supra) may, in this context, be reproduced to advantage thus: 31. It is apparent from the aforesaid discussion that the endorsement made on the bill of entry is an order of assessment. It cannot be said that there is no order of assessment passed in such a case. When there is no lis, speaking order is not required to be passed in across the counter affair . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such goods. Section 17(5) of the Act as amended provides that where reassessment done under subsection 17(4) is contrary to the assessment done by the importer or exporter regarding the matters specified therein, the proper officer has to pass a speaking order on the reassessment, within 15 days from the date of reassessment of the bill of entry or the shipping bill, as the case may be. The explanation to amended section 17 has clarified that import or export before the amendment by Finance Act, 2011 shall be governed by unamended provisions of section 17. 34. Section 18 deals with the provisional assessment of duty where the importer or exporter is unable to make self-assessment or the proper officer deem it necessary to subject any imported or export goods to any chemical or other tests; or where further inquiry is deemed necessary by the proper officer. 35. Section 27 of the Act prior to amendment by Finance Act, 2011 provided for refund procedure. Any person could claim a refund of duty and interest if any paid on such duty. Refund of duty and interest if any paid pursuant to the order of assessment or borne by him, may make an application for ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y where any duty or interest has been paid under protest. 37. Under Section 27(2)(a) it is incumbent upon the applicant to satisfy that the amount of duty or interest of which refund has been claimed, had not been passed by him to any other person, the provision aims at preventing unjust enrichment. 38 . No doubt about it that the expression which was earlier used in Section 27(1)(i) that in pursuance of an order of assessment has been deleted from the amended provision of Section 27 due to introduction of provision as to self-assessment. However, as self-assessment is nonetheless an order of assessment, no difference is made by deletion of aforesaid expression as no separate reasoned assessment order is required to be passed in the case of self-assessment as observed by this Court in Escorts Ltd. v. Union of India Ors. (supra). 39. In Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. 2000 (120) ELT 285 (SC)= (2000) 6 SCC 650 , the question which came up for consideration before this Court was non-challenge of an appealable order where the adjudicating authority had passed an order which is appealable under the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entive) 2004 (172) ELT 145 (SC)= (2005) 10 SCC 433 , the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of assessment stands, the duty would be payable as per that order of assessment. This Court has observed thus: 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) case (2000) 6 SCC 650. Once an order of assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal, that order stands. So long as the order of assessment stands the duty would be payable as per that order of assessment. A refund claim is not an appeal proceeding. The officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The officer considering the refund claim cannot also review an assessment order. 7. We also see no substance in the contention that provision for a period of limitation indicates that a refund claim could be filed without filing an appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or reassessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, reassessment is not permitted nor conditions of exemption can be adjudicated. Reassessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or reassessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India 2009 (240) ELT 490 (Bom.) though the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bs/E filed by it. He also submits, that, if he were at this stage, to appeal against the assessment of the Bs/E, his appeal would be barred by time, and, having been preferred beyond the maximum condonable period, as stipulated in the Customs Act, the Appellate Authority would be bound to reject the appeal, in view of the law laid down by the Supreme Court in Singh Enterprises v. C.C.E., 2008 (221) ELT 163 (SC). 26. We have pointed out, the learned counsel for the petitioner, that we are not called upon to express any opinion on any appeal which the petitioner may, if so advised, choose to prefer, against the assessment of the three Bs/E filed by it, either on the aspect of limitation, or on merits. Any such appeal, preferred, would, needless to say, have to be decided, by the competent appellate authority, in accordance with law. 27. Learned counsel appearing for the petitioner submits, candidly, that he would be satisfied if this writ petition is disposed of by permitting the petitioner to prefer an appeal against the assessment of the Bill of Entry with the direction to the respondents to decide the same in accordance with law. 28. We, accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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