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TMI Blog2021 (1) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... r.No. Bills of Entry No. Date Product HSN (as declared on BoEs) 1. 2434172 15.03.2019 NCS5500 8 Slot Single Chassis (Cisco Routers) 85176990 2. 2436049 15.03.2019 --do-- 85176990 3. 2522910 25.03.2019 --do-- 85176990 4. 2805152 11.04.2019 --do-- 85176990 5. 2968920 25.04.2019 --do-- 85176990 5. During internal audit, it realised that it had made inadvertent typographical error at the time of fling the Bills of Entry by incorrectly declaring the CTH as '85176990' instead of correct CTH '85176930'. It is stated that for goods under CTH 85176930, rate of duty is NIL whereas in respect of goods under CTH 85176990, rate of duty is 20%. Because of such inadvertent error, petitioner had to make excess payment of basic customs duty to the extent of Rs. 14,50,01,413.00. 6. Immediately on detecting the inadvertent error, petitioner submitted a letter dated 07.06.2019 before respondent No.2 requesting correction in the Bills of Entry. Petitioner received a communication dated 25.10.2019 from respondent No.2 declining the request as the petitioner had not obtained an order of re-assessment or appealed against the self-assessment done on the Bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have since been out charged. Process of import is complete. To re-open the assessment at this stage, petitioner is required to challenge the order of assessment by fling appeal before the Commissioner of Customs (Appeals). 9.4 Reference has been made to an order passed by this Court in the case of M/s. Maharashtra Cylinders Pvt. Ltd. Vs. CESTAT, Mumbai 2010(259) ELT 369 Bom. wherein it has been held that self assessment can be challenged for seeking any relief. Further reference has been made to the decision of the Supreme Court in the case of M/s. ITC Ltd. Vs. Commissioner of Central Excise Kolkata-IV (2019) 17 SCC 46 in support of the contention that if the petitioner is aggrieved by the order of assessment, he is required to file an appeal before the Commissioner of Customs (Appeals) and seek its remedy under section 128 of the Customs Act. Without exhausting the remedy of appeal it is not open to the petitioner to invoke the writ jurisdiction. Therefore, the writ petition is liable to be dismissed. 10. Learned counsel for the petitioner has referred to the request made by the petitioner on 07.06.2019 to respondent No.2 for re-assessment of the Bills of Entry because of inadve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned / speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of reassessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against "any order" which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts. 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under the Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature, petitioner is required to be relegated to the remedy of appeal ? 15. To answer the above queries, it would be apposite to refer to relevant provisions of the Customs Act. Section 17 deals with assessment of duty. Sub-section (1) says that an importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85 which deals with stores which may be allowed to be warehoused, self-assess the duty, if any, leviable on such goods. So sub-section (1) provides for self assessment of customs duty by an importer. 15.1. As per sub-section (2), the proper officer may verify the entries made under section 46 or section 50 and the self assessment of goods referred to in sub-section (1) and for this purpose examine or test any imported goods or export goods or such part thereof as may be considered necessary. The proviso deals with selection of cases for such verification. In terms of sub-section (3), for the purpose of verification 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) to make re-assessment and re-assess the duty leviable on such goods. 17. Section 149 deals with amendment of documents. It says that save as otherwise provided in sections 30 and 41 which deals with delivery of arrival manifest or import manifest or import report and delivery of departure manifest or export manifest or export report, the proper officer may, in his discretion, authorise any document, after it has been presented in the customs house to be amended in such form and manner and within such time, subject to such restrictions and conditions, as may be prescribed. As per the provisio, no amendment of a Bill of Entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported as the case may be. 17.1. For ready reference, section 149 is extracted hereunder : "149. Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs arising therein due to any incidental slip or omission. Such correction may be made at any time. 21. From a conjoint reading of the aforesaid provisions of the Customs Act, it is evident that customs authorities have the power and jurisdiction to make corrections of any clerical or arithmetical mistakes or errors arising in any decision or order due to any accidental slip or omission at any time which would include an order of self-assessment post out of charge. 22. Having noticed and analysed the relevant legal provisions, we may now turn to the decision of the Supreme Court in ITC Ltd. Vs. Commissioner of Central Excise, Kolkata IV (supra). The question which arose before the Supreme Court was whether in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty could be entertained. 22.1. From the question itself, it is clear that the issue before the Supreme Court was not invocation of the power of re-assessment under section 17(4) or amendment of documents under section 149 or correction of clerical mistakes or errors in the order of self-assessment made under section 17(4) by exercising power under section 154 vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot sought for any refund on the basis of the self-assessment. It has sought re-assessment upon amendment of the Bills of Entry by correcting the customs tariff head of the goods which would then facilitate the petitioner to seek a claim for refund. This distinction though subtle is crucial to distinguish the case of the petitioner from the one which was adjudicated by the Supreme Court and by this Court. 25. Grievance of the petitioner is not on the merit of the self-assessment as the petitioner is aggrieved by the failure on the part of the respondents to carry out amendment in the Bills of Entry by replacing the incorrect CTH by the correct one namely by replacing CTH '85176990' with '85176930' which was declared inadvertently by the petitioner at the time of fling the Bills of Entry. This request of the petitioner, in our opinion, falls squarely within the domain of section 149 read with section 154 of the Customs Act. Upon amendment in the Bills of Entry by correcting the CTH, consequential re-assessment order under section 17(4) of the Customs Act would be in order. 26. Madras High Court in M/s.Hewlett Packard Enterprise India Private Limited (supra) correctl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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