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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 ..... done correctly, he may re-assess the duty leviable on such goods. In a case where re-assessment is contrary to self assessment and where the importer does not confirm his acceptance of such re-assessment, the proper officer shall pass a speaking order on the reassessment - therefore, it is quite evident that though duty is cast upon an importer to self assess the customs duty leviable on the imported goods, a corresponding duty is also cast upon the proper officer to verify and examine such self assessment. Such verification and examination has to be done in good faith and in the process of verification or examination if the proper officer finds that there is mis-classification of tariff head or wrong classification of tariff head of the imported goods leading to lesser levy of customs duty or excess levy of customs duty, he has the power and authority under sub-section (4) to make re-assessment and re-assess the duty leviable on such goods. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilana with Shahana Manjesh i/by Ms. Farzeen Khambata for the Petitioner. Mr. J.B.Mishra for the Respondents. Judgment and Order (PER UJJAL BHUYAN, J.): Heard learned counsel for the parties. 2. This petition under Article 226 of the Constitution of India seeks a direction to the respondents to reassess the customs duty in respect of Bills of Entry Nos. 2434172, 2436049, 2522910, 2805152 and 2968920 (annexed as Annexure B colly. to the writ petition) by correcting the Customs Tarif Heading (CTH) from 85176990 to 85176930. 3. Facts lie within a narrow compass. However to put the matter in proper perspective relevant facts are briefly stated hereunder. 4. Petitioner is an importer and by the five Bills of Entry Nos. 2434172, 2436049, 2522910, 2805152 and 2968920 had imported 48 units of routers between 15.03.2019 to 25.04.2019. Details of the Bills of Entry are as under: Sr.No. Bills of Entry No. Date Product HSN (as declared on BoEs) 1. 2434172 15.03.2019 NCS5500 8 Slot Single Chassis (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that petitioner had self assessed the Bills of Entry in terms of section 17 of the Customs Act and had classified the goods under CTH '85176990' instead of '85176930' because of which it now claims of having made excess payment of customs duty. 9.1 Regarding request of the petitioner for reassessment of the Bills of Entry, stand taken is that respondent No.2 had informed the petitioner that consequent upon amendment to section 17 of the Customs Act made in the year 2011, concept of 'self-assessment' has been introduced in the Customs Act effective from 08.04.2011 which provides for self-assessment of duty on imported goods by the importer himself by fling Bill of Entry in the electronic form. Therefore, burden is on the importer to ensure that he declares the correct classification and applies the correct rate of customs duty. 9.2 The Bills of Entry in question were assessed by the petitioner and such Bills of Entry upon self-assessment itself would be an order of assessment. However, no appeal has been preferred against such assessment order. Consequently, no order for re-assessment has been obtained. Therefore, petitioner has been informed that req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of re-assessment. Failure to do so would amount to abdication of duty as conferred upon them by law. 10.2. Learned counsel has placed before us a compilation of notifications and case laws wherefrom he submits that respondents have the power to make the corrections as requested by the petitioner and pass reassessment orders. 11. In his reply submissions, Mr. Mishra, learned counsel for the respondents has extensively referred to the reply affidavit filed by the respondents and submits that if the petitioner is aggrieved by the order of self assessment, he should prefer appeal against such order before the Commissioner of Customs (Appeals) under section 128 of the Customs Act. In support of his contention, he has placed reliance on the decision of the Supreme Court in ITC Limited Vs. Commissioner of Central Excise, Kolkata IV (supra) more particularly to paragraphs 43 and 47 thereof which are extracted hereunder : 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression Any person is of wider amplitude. The Revenue, as well as the assessee, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment is requested after out of charge has been given under section 47 of the Customs Act, the same shall continue to be done by the Port Assessment Group (PAG) as was done earlier. From the compilation, he has pressed into service decision of the Kerala High Court in GTN Textiles Limited vs. Union of India 2015 SCC Online Ker 39433 and that of the Madras High Court in Usha International Ltd. Vs. Assistant Commissioner of Customs, Chennai 2019 (365) E.L.T. 56 (Mad) in support of his contention that in a case of this nature, it is not necessary to prefer appeal when power to make corrections of inadvertent mistakes or errors leading to re-assessment has been conferred upon the authorities. Finally, he places reliance on the decision of the Madras High Court in M/s. Hewlett Packard Enterprise India Private Limited Vs. Joint Commissioner of Customs, 2020(10) TMI 970 in which case it has been specifically held that in a case of this nature, appropriate remedy is not that of appeal but rectification of an error apparent on the face of the record which existed at the time of clearance of the goods. 13. Submissions made by learned counsel for the parties have been duly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he self assessment done by the importer or exporter. In such a case the proper officer shall pass a speaking order in reassessment except in such cases where the importer or exporter confirms acceptance of the re-assessment in writing. 16. Thus, the scheme of section 17 from the perspective of the importer (since in this case we are dealing with imports) is that an importer upon entering his imported goods is required to self assess the duty leviable on such imported goods. This is subject to verification and examination by the proper officer. If upon verification or examination etc. the proper officer fnds that the self assessment is not done correctly, he may re-assess the duty leviable on such goods. In a case where re-assessment is contrary to self assessment and where the importer does not confirm his acceptance of such re-assessment, the proper officer shall pass a speaking order on the reassessment. Therefore, it is quite evident that though duty is cast upon an importer to self assess the customs duty leviable on the imported goods, a corresponding duty is also cast upon the proper officer to verify and examine such self assessment. Such verification and examination h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods have been cleared for home consumption or warehoused, etc. except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, etc. Thus, amendment of the Bill of Entry is clearly permissible even in a situation where the goods are cleared for home consumption. The only condition is that in such a case, the amendment shall be allowed only on the basis of the documentary evidence which was in existence at the time of clearance of the goods. 19. This bring us to section 154 of the Customs Act which deals with correction, clerical errors, etc. It says that clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under the Customs Act or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be. 19.1. Section 154 of the Customs Act reads as under : 154. Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate proceedings. It was in that context that Supreme Court held that in case any person is aggrieved by any order which would include an order of self-assessment, he has to get the order modified under section 128 or under other relevant provisions of the Customs Act (emphasis ours). 22.2. Therefore, in the judgment itself Supreme Court has clarified that in case any person is aggrieved by an order which would include an order of self-assessment, he has to get the order modified under section 128 or under other relevant provisions of the Customs Act before he makes a claim for refund. This is because as long as the order is not modified the order remains on record holding the field and on that basis no refund can be claimed but the moot point is Supreme Court has not confined modification of the order through the mechanism of section 128 only. Supreme Court has clarified that such modification can be done under other relevant provisions of the Customs Act also which would include section 149 and section 154 of the Customs Act. 23. In Maharashtra Cylinders Private Limited (supra), a Division Bench of this court also reiterated the proposition that unless an order of self ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact. In all cases it need not be an arithmetical error alone. It may connote errors which can be discerned upon due verification. Having said so, we may also indicate that power to amend documents available under section 149 of the Customs Act read with correction of clerical or arithmetical mistakes or errors in orders due to accidental slip or omission under section 154 thereof is different and distinct from the appellate power exercised under section 128 of the Customs Act. The power of amendment or correction, as the case may be, is vested on the same officer who had passed the initial order or an officer of equivalent rank. On the other hand, appellate jurisdiction is directed to correct decisions or orders passed by an inferior or lower authority. By its very nature an appellate authority is superior to the authority which had passed the order appealed against. 28. In the light of the above, we are of the view that petitioner has made out a case for issuance of a direction to the respondents for correction of the mistake or error in classification of the goods from CTH '85176990' to '85176930' and thereby for amendment of the Bills of Entry. Refusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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