9911796707
TMI Blog2022 (4) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... lude 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. Therefore, as long as such an application is filed within the time stipulated under the provisions of the Act, it cannot be denied. The impugned order passed by the 2nd respondent dated 07.01.2019 is set aside and the case is remitted back to the 2nd respondent to pass a speaking order within a period of 3 months from the date of receipt of a copy of this order, after examining the contemporaneous documents, which were available at the time of import with the petitioner notwithstanding the fact that the petitioner had allegedly by mistake filed Bill of Entry under the Heading 8501 of the Customs Tariff Act, 1975 - Petition allowed by way of remand. - W.P.(MD) No.18910 of 2021 And W.M.P.(MD) Nos.15738 and 15739 of 2021 - - - Dated:- 4-4-2022 - Honourable Mr.Justice C.Saravanan For the Petitioner : Mr.A.K.Jayaraj For the Respondents : Mr.R.Aravindan Senior Standing Counsel ORDER The petitioner has filed this writ petition against the impugned order dated 07.01.2019 bearing Ref.C.No.VII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner submits that when the subject Bill of Entries were filed, there was no clarification and that the Central Board of Indirect Taxes and Customs later by its clarification dated 06.04.2018 has clarified the position as under:- b) However, the solar panel/module is equipped with elements but these elements do not supply the power to an external load ie., a motor, an electrolyser etc., then the solar panel/module is classifiable under CTH 8541. c) Solar panel module without element is classifiable under CTH 8541. 2. In this regard, Board has further received representations from the trade regarding classification of solar modules/panels equippted with by pass diodes. The trade is of the view that the function of the bypass diodes in the module is to protect the solar modules/panels at the time of shading of solar cells and not to control the direction of the current. Therefore, in their opinion, solar modules equipped with bypass diode merits classification under Heading 8541. 6.It is submitted that the petitioner is entitled for amendment of the Bill of Entry filed under Section 149 of the Customs Act, 1962 r/w Section 154 of the aforesaid Act for rectifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory, 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 postamendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or selfassessment 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 selfassessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include selfassessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. 8.The learned counsel for the petitioner therefore submits that an assessment in the Bill of Entry can be modified either by filing an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of latches and therefore, the learned counsel for the respondents prays for dismissal of this writ petition. 14.I have considered the arguments advanced by the learned counsel for the petitioner and the Senior Standing Counsel for the respondents. 15.The petitioner had imported the solar panel modules for the purpose of establishing 15 MW (AC) Grid Inter Active Solar PV Power Project in Ettankulam Village, Manoor Taluk, Tirunelveli District and had filed the Bill of Entries as detailed above. After the Bill of Entries were filed, a clarification was issued by the Board as detailed above. Sections 149 and 154 provide for a machinery for altering the assessment. These are two of the three methods available under the provisions of the Customs Act, 1962. If one of the three methods are available, the importer would be entitled to claim refund under Section 27 of the Customs Act, 1962. In this case, the petitioner has requested for the amendment under Section 149 of the Customs Act, 1962. 16.The Hon'ble Supreme Court in ITC Limited Vs. Commissioner of Central Excise, Kolkata IV reported in (2019) 17 SCC 46 has categorically stated that any person is aggrieved by an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
