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TMI Blog2021 (4) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants imported Low Ash Metallurgical Coke (LAM Coke) from China vide Bills of Entry Nos. 838162, 8384122 and 8384152 all dated 9.10.2018. While the quantities as per the Bills of Lading No.3, 4, and 5 dated 19.9.2018 were 5000, 5000 and 4140 MTs respectively (total 14,140 MTs), the quantities as per the corresponding Invoices No. IMR/2018-19/7196-1, No. IMR/2018-19/7196-2 and No.IMR/2018-19/7196-3 issued by the supplier, M/s. Metallurgical Resources AG, Switzerland, were for 4823, 4823 and 3993.444 MT of LAM Coke respectively totally amounting to 13,639.44 MT. The difference in quantity was on account of moisture. 2.1 The Anti-Dumping Duty (ADD) @ US $ 25.20 per MT was imposed on LAM Coke originating in and exported from China vide SI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted its refund claim of excess ADD paid under protest. The Assistant Commissioner, thereafter, issued a show-cause notice dated 15.2.2019 and the appellant filed reply to the show-cause notice and the Assistant Commissioner, thereafter passed Order-in-Original dated 28.3.2019 rejected the claim for refund of ADD of Rs. 9,41,005/- on the ground that the claimant has not challenged the assessment of Bill of Entry nor got it reassessed before or after out of charge of goods and hence, the refund claim is not maintainable. However, the Assistant Commissioner recorded in para 2 that the importer has an option to file an application for amendment of Bill of Entry under Section 149 of the Customs Act, 1962 to rectify any mistake in the Bill o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 17(4) of the Customs Act, 1962 but the Assistant Commissioner did not undertake reassessment in accordance with law and instead issued show-cause notice for rejection of the refund claim. He further submitted that even in para 5 of the show-cause notice, importer was given an option to file an application for amendment of Bill of Entry under Section 149 of the Customs Act, 1962 based on the documents available at the time of importation and the adjudicating authority in para 2 of his finding has also reiterated that the importer has an option to file an application for amendment of Bill of Entry under Section 149 of the Customs Act, 1962 and the Department has not challenged the averment in the show-cause notice or the findings of the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) CC vs. Volvo India Pvt. Ltd.: 2019 (365) ELT 803 (Mad.) (iii) Hero Cycles Ltd. vs. UOI: 2009 (240) ELT 490 (Bom.) maintained in Union of India vs. Hero Cycles Ltd.: 2010 (252) ELT A103. (iv) Calisons Fibres Pvt. Ltd. vs. CC (Imports): 2019 (370) ELT 1097 (Tri.-Mum.) (v) Steel Authority of India vs. CC, Chennai: 2016 (343) ELT 602 (Tri.-Chennai) (vi) Commissioner vs. Crest Chemicals: 2009 (244) ELT 361 (Tribunal) 4.2 He further referred to the decision of Calisons Fibres Pvt. Ltd. cited supra where the Tribunal has directed that the request for reassessment be treated as an application under Section 149 of the Customs Act, 1962 for amendment of Bill of Entry and directed the proper officer to pass an appropriate order in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 149 of the Customs Act, 1962 to rectify any mistake in the Bill of Entry based on the documents available at the time of importation but the learned Commissioner while passing the impugned order in para 12 denied the right of the appellant to seek amendment of Bill of Entry as permissible under Section 149 of the Customs Act, 1962. Further, I find that the Revenue has not challenged the show-cause notice as well as the Order-in-Original allowing the option to the appellant to seek an amendment in the Bill of Entry as permissible under Section 149 of the Customs Act, 1962 but the same was suo moto set aside by the learned Commissioner which is against law as held in various decisions relied upon by the appellant cited supra. Hence, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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