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TMI Blog2022 (9) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... he total quantity of goods as mentioned in the Bill of Lading while lesser quantity was actually imported/landed by the vessel. The Bill of Entry, therefore, needs to be re-assessed. Cases of remission of duty under section 23(1), are those where the goods would have been destroyed or lost (other than through pilferage) before their clearance for home consumption. Before the clearance for home consumption, the assessment of the goods under section 17 is still open and the duty can be assessed or re-assessed accordingly. The assessment once completed attains finality and can only be appealed against before the Commissioner (Appeals) or reopened through a notice under section 28. The documents relied upon by the appellant are inconclusive. In respect of MV Vinayak, for instance, the joint draught survey report is signed by the Master of the Vessel and the representatives of the two receivers- the appellant represented by Sravan Shipping Services Pvt. Ltd. and M/s. KPR Fertilisers Ltd. represented by M/s. Coromandel Shipping Agency (P) Ltd. - there is no agreement between the person who was to hand over the goods viz., the master of the vessel and the persons who were to receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant were inconclusive and do not establish that the goods were landed short of the quantity mentioned in the Bills of Lading. 5. Having considered the submissions on both sides, I find that the following questions need to be answered in these two appeals: a) If the duty assessed in the Bill of Entry through self-assessment by the appellant is in excess, can a refund be claimed or does the Bill of Entry has to be re-assessed first before refund can be sanctioned? b) Will change in the quantity of the goods in the Bill of Entry amount to re-assessment? c) Do the documents relied upon by the appellant establish that lesser quantity of goods were imported than the quantity mentioned in the Bill of Lading? d) Considering (a), (b) and (c) above, can the impugned order be sustained? 6. The definition of assessment under the Customs Act was, earlier an inclusive definition and it read as follows: Section 2 Definitions (2) assessment includes provisional assessment, self-assessment, re-assessment and any assessment in which the duty assessed is nil; This was substituted in 2018 with a more comprehensive definition as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny amount of duty paid in excess of what was assessed. The officer sanctioning refund cannot re-open an assessment. Since there were judgments taking different views regarding cases of self- assessment on whether the refund can be sanctioned by an officer without the Bill of Entry being assailed in appeal, the matter was considered by a larger bench of the Supreme Court in the case of ITC Ltd. Commissioner of Central Excise, Kolkata IV [2019 (368) E.L.T. 216 (S.C.)] in a batch of matters dealing with Customs, Excise and Service Tax and it was held that no refund can be sanctioned even in cases of self-assessment unless the self-assessment so made is assailed and modified. Paragraphs 47 and 48 of this judgment are reproduced below: 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under 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 makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23(1) has no application in this case. 11. I find that this is not a case for remission of duty but is a case of application for refund on the ground that duty was paid in excess reckoning the total quantity of goods as mentioned in the Bill of Lading while lesser quantity was actually imported/landed by the vessel. The Bill of Entry, therefore, needs to be re-assessed. Cases of remission of duty under section 23(1), are those where the goods would have been destroyed or lost (other than through pilferage) before their clearance for home consumption. Before the clearance for home consumption, the assessment of the goods under section 17 is still open and the duty can be assessed or re-assessed accordingly. Once the duty is assessed and paid and the proper officer makes an order permitting clearance of goods for home consumption under section 47, the assessment is completed, the goods cease to be imported goods as per section 2(25), the goods cease to be dutiable goods as per section 2(14) and the process of assessment or re-assessment under section 17 comes to an end. The definitions of dutiable goods and imported goods under section 2 are as follows: Section 2 Definit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived 147 MT short. At the request of Sravan Shipping Services, M/s. Pinnacle Marine Services Pvt Ltd. also provided a certificate that 121.670 MT was short received. Thus, there is no agreement between the person who was to hand over the goods viz., the master of the vessel and the persons who were to receive them viz., the appellant that there was shortage. The Master says that he delivered the entire quantity and the appellant or his agents or the surveyors appointed by it say that the sulphur was short landed. 14. Similarly, in the case of MV Nirman PRITI, it is indicated at the top that of the 13,200 MT BL quantity of Sulphur, only 13011.771 MT was discharged. The Master of the Vessel s remarks were that the entire quantity was discharged. So, it is a case of word of one versus the word of another. The reports are inconclusive. Therefore, even for this reason, the appellant is not entitled to a refund. 15. To sum up: a) The self assessment of duty by the appellant has attained finality and has not been appealed against and hence no refund can be sanctioned so as to modify the assessment by reducing the quantity of goods as claimed; b) Remission under section 23 doe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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