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TMI Blog2021 (9) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... ND GENERAL) , NEW DELHI [ 2015 (4) TMI 561 - SUPREME COURT] . The petitioner, in view of the decision in Supreme Court in ITC, made an application for amendment of the Bills of Entries under section 149 of the Customs Act so that after that the duty could be refunded. The application filed by the petitioner was however, rejected. In view of the decisions of the Bombay High Court in DIMENSION DATA INDIA PRIVATE LTD. VERSUS COMMISSIONER OF CUSTOMS AND ANR. [ 2021 (1) TMI 1042 - BOMBAY HIGH COURT] and the Telangana High Court in M/S. SONY INDIA PVT. LTD. VERSUS UNION OF INDIA AND ANOTHER [ 2021 (8) TMI 622 - TELANGANA HIGH COURT] , the respondent can take recourse to appropriate proceedings, including the provisions of sections 149 and 154 of the Customs Act for either amendment of the Bills of Entry or for correction of the Bills of Entry. It is expected that if such applications are now filed by Vivo Mobile, the same would be adjudicated expeditiously as the refund applications were filed in 2015. It is, therefore, ordered that in the event applications are now filed by Vivo Mobile, they shall be decided expeditiously and preferably within a period of three months from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 [CENVAT Rules] in respect of the inputs or capital goods used in the manufacturer of these goods. 4. The Supreme Court, in the context of import of Nylon Filament Yarn of 210 deniers, examined a similar condition no. 20 in SRF Ltd. V/s Commissioner of Customs, Chennai [2015(318) ELT 607(SC)]. The Appellant had claimed nil rate of Additional Duty by relying upon a notification dated 1 March 2002. The Deputy Commissioner of Customs held that SRF Ltd. would not be entitled to exemption from payment of Additional Duty since it did not fulfill condition no. 20 of the said notification, which is to the effect that the importer should not have availed credit under rule 3 or rule 11 of the CENVAT Rules in respect of the capital goods used for the manufacture of these goods. The admitted position was that such CENVAT Credit was not availed by SRF Ltd. The Tribunal held that when the credit under CENVAT Rules was not admissible, the question of fulfilling the aforesaid condition did not arise and, therefore, as condition no. 20 was not satisfied SRF Ltd could not claim nil rate of Additional Duty. This reasoning of the Tribunal was found to be not correct by the Supreme Court in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 17 March 2012 in terms of condition no. 16 in the light of judgement passed by the Supreme Court in SRF; and (ii) Whether the importer was eligible for refund claim, if the answer to the aforesaid question is in the affirmative. 8. The Deputy Commissioner, in view of the decision of the Supreme Court in SRF Ltd, held that Vivo Mobile in terms of condition no. 16 of the notification dated 17 March 2012, would be required to pay Additional Duty at the reduced rate of 1%. The Deputy Commissioner then examined whether it was necessary for Vivo Mobile to get re-assessment of the bills of entry and for this purpose examined the decision of the Delhi High Court in M/s. Micromax Informatics Ltd. vs. Union of India [ 2016 (335) ELT 446 (Del.) ] that had been placed by Vivo Mobile to contend that it was not necessary to seek re-assessment of the bills of entry. The Delhi High Court had held that an authority would not be justified in refusing to entertain an application for refund only because no appeal was filed against the assessment order, even if there was one. The Deputy Commissioner, accordingly, held that there was no necessity of seeking modification in the bills of entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 passed by the Adjudicating authority, wherein the refund claim was rejected by the Adjudicating authority on the similar grounds. The relevant portion of the said Hon ble High Court Order is re-produced below: 16. With the Petitioner having already placed all the relevant documents on record and with the only reason for rejection of the refund application being the untenable ground of alleged failure by the Petitioner to submit reassessed B/Es, the Court sees no reason why the Respondents should be permitted to deny the Petitioner the grant of refund any longer. 17. Accordingly, the refund claim filed by the Petitioner on 28th December 2015 is allowed. The Respondents will now pay to the Petitioner the amount of refund as claimed together with interest due thereon up to the date of refund not later than two weeks from today. 5.5. I also find from the records, submitted by the Appellant that in respect of the Appellant s own similar cases, refund claims of ₹ 8,05,06,281/- covering the period 15.06.2015 to 14.07.2015 have been sanctioned to the Appellant by the same Adjudicating Authority vide Order-in-Original No. 381/AT/2018 dated 28.05.2018, holding that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a no- 15 to 17 are reproduced below: 15. The impugned order dated 07th June 2016 passed by the respondent No-04 rejecting the petitioner s refund claim is accordingly set aside. 16. With the petitioner having already placed all the relevant documents on record and with the only reason for rejection of the refund application being the untenable ground of alleged failure by the petitioner to submit re-assessed B/Es. the Court sees no reason why the respondents should be permitted to deny the petitioner the grant of refund any longer. 17. Accordingly, the refund claim filed by the petitioner on 28th December, 2015 is allowed. The respondents will now pay to the petitioner the amount of refund as claimed together with interest due thereon up to the date of refund not letter than two weeks from today Whereas, in the present case the issue involved is whether or not the refund claimant has passed the test of unjust enrichment and not grant of refund without re-assessment of the B/Es. Thus it appears that the Commissioner (Appeals) has incorrectly applied the order of the Hon ble High Court of Delhi. C. Further, going on the merits of the case the first appellate authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [2002-TIOL-2706-SC]. 13. It needs to be noted that in Escort Ltd., the issue that had arisen for consideration before the Supreme Court was regarding the bills of entry classifying the imported goods under a particular tariff item and payment of duty thereon. The Supreme Court held that in such a case signing the bills of entry itself amounted to passing an order of assessment and, therefore, an application seeking refund on the ground that the imported goods fell under a different tariff item attracting lower rate of duty, should be filed within six months after the payment of duty. The Supreme Court, therefore, held that the signature made in the bills of entry was an order of assessment of the assessing officer. 14. The Supreme Court, thereafter, in ITC observed that the provisions relating to refund were more or less in the nature of execution proceedings and it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly. We hold that the application for refund were not maintainable. The appeals are accordingly disposed of. Parties to bear their own coasts as incurred. (emphasis supplied) 15. The Department, in view of the aforesaid judgment of the Supreme Court in ITC, filed applications on 8 November 2019 for raising an additional ground that the claim for refund cannot be entertained unless the Assessment Order or Self-Assessment is modified in accordance with law. The leave sought by the Appellants to add the additional ground in the memo of the two appeals was granted by the Tribunal by order dated June 08, 2020. However, it was clarified that this would not mean that the issue raised in the additional ground has been decided in favour of the Appellant. 16. Shri Sunil Kumar, learned Authorised Representative appearing for the Department, submitted that the refund applications filed by Vivo Mobile were not maintainable for the reason that the assessment orders or self-assessment orders had not been modified and in support of this contention he placed reliance upon the decision of the Supreme Court in ITC. Learned Authorised Representative also submitted that in any event, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 154. Correction of clerical errors, etc . Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this 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. 21. Section 27 of the Customs Act deals with claim for refund of duty and the portion of this section relevant for the purposes of these appeals is reproduced below: 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. 22. In paragraph 44 of the judgment of the Supreme Court in ITC, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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. 20. Thus, section 154 permits correction of any clerical or arithmetical mistakes in any decision or order or of errors 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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. (emphasis supplied) 26. The Telangana High Court in Sony India also examined almost a similar controversy as has been raised in these two appeals. The appellant therein had imported mobile phones in India for trading purposes during the period 04.08.2014 to 29.01.2015. At the time of import of the mobile phones, the petitioner had not claimed any exemption under serial no. 263A (ii) of the Exemption Notification which allowed payment of Additional Duty at the rate of 1% only in the Bills of Entry in view of the decision of the Supreme Court in SRF Limited. The petitioner, in view of the decision in Supreme Court in ITC, made an application for amendment of the Bills of Entries under section 149 of the Customs Act so that after that the duty could be refunded. The application filed by the petitioner was however, rejected. The contentions of the petitioners, as noted in paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant case, the petitioners filed self-assessed Bills of Entry and not disputed the assessment, and the assessment had attained finality; that it is not the case of any error or lapse apparent on account of 2nd respondent's - Department; that petitioner was required to seek re-assessment as provided under the provisions of Section 128 of the Customs At, 1962 within such stipulated time and as per the conditions provided therein. 24. According to the 2nd respondent, the petitioner's request for amending the BoE is against the provisions of the Customs Act and was not sustainable. 26. It further stated that same action cannot be sought under two different sections of the Customs Act, 1962; that there is a specific provision for re-assessment as provided under Section 128 of the Customs Act, 1962; that if re-assessment has to be carried out under Section 149 without any limitation of time, the existence of the provisions of Section 128 and Appeal mechanism therein would become redundant; and if at all the amendments, even in the nature of re-assessment, are to be carried out under the provisions of Section 149, there is no requirement for the existence of the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment can also be sought under Section 149 of the Act, its judgment has to be followed by the 2nd respondent, as it is binding under Article 141 of the Constitution of India. xxxxxxxxx 48. Further, it is the duty and responsibility of the Assessing Officer / Assistant Commissioner to correctly determine the duty leviable in accordance with law before clearing the goods for Home consumption. The assessing officer instead, having failed in correctly determining the duty payable, has caused serious prejudice to the importer / petitioner at the first instance. Thereafter, in refusing to amend the Bill of Entry under Section 149 of the Act, to enable the importer / petitioner to claim refund of the excess duty paid, the Assessing Authority / Assistant Commissioner caused further great injustice to petitioner. 49. Also, the Assessing Authority has failed to consider the fact that Section 149 of the Act does not prescribe any time limit for amending the Bill of Entry filed and assessed. The power to amend under Section 149 of the Act is a discretionary power vested with the authority . Since, it is due to incorrect determination of duty by the assessing authority initially, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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