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TMI Blog2023 (3) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ling an appeal under section 128 of the Customs Act. This plea could not have been taken by the department to contest the claim of the respondent while seeking refund filed as a consequence of the reassessment of the Bills of Entry or amendment in the Bills of Entry - The Commissioner (Appeals), therefore, committed no illegality in taking a view that refund has to be granted to the respondent as the order for amendment in the Bills of Entry had attained finality. Whether the refund claims were barred by time? - HELD THAT:- The Commissioner (Appeals) held that if section 149 of the Customs Act relating to amendment in the Bills of Entry is made applicable, the cause of action for claiming refund would arise only after the amendment is made and so the limitation for claiming refund would start from that date. In coming to this conclusion, the Commissioner (Appeals) placed reliance upon the decision of the Bombay High Court in KESHARI STEELS VERSUS COLLECTOR OF CUSTOMS, BOMBAY [ 1996 (9) TMI 154 - HIGH COURT OF JUDICATURE AT BOMBAY ], wherein what was examined was whether the rejection of the refund claim on the ground of limitation contemplated under section 27 of the Customs Act wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of import as it was under an impression that it did not satisfy the condition set out in the Notification. 2. The issue relating to applicability of conditions of non-availment of CENVAT credit in relation to the imported goods under the Notification was settled by the Supreme Court in favour of the importers in SRF Ltd. vs. Commissioner of Customs, Chennai [2015 (318) E.L.T. 607 (S.C.)] . The Supreme Court also dismissed the review petition filed by the department and the decision is reported in 2016 (340) E.L.T. A202(S.C.). 3. After the aforesaid judgment was delivered by the Supreme Court in SRF, the respondent filed letters dated 16.05.2015 and 05.06.2015 for re-assessment of the Bills of Entry and also claimed refund of differential CVD. This refund request was rejected verbally and the respondent was asked to get re-assessment of these Bills of Entry. The Bills of Entry were initially re-assessed in March 2018 by the Deputy Commissioner by manually/physically making the requisite changes in the duty liability on the face of the Bills of Entry, but the Deputy Commissioner, by a letter dated 22.11.2018, amended the reassessment orders under section 154 of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same has to be entertained under section 27 of the Customs Act, 1962. Hon'ble Supreme Court has nowhere stated that reassessement can only be done after obtaining an appellate order by filing appeal under section 128 of the Act. Thus, I find no contradiction in the reassessments done and the law laid down by Hon'ble Supreme Court in ITC Ltd. [2019 (368) ELT 246 (SC)]. 5.5 Another plea that has been taken by the Refund Sanctioning Authority is that the reassessment done by the Deputy Commissioner Gr VA was modified to „amendment under Section 149 of the Act‟ by the Deputy Commissioner Gr VA in terms of powers conferred to him under section 154 of the Act. Without going into merits of this action of Deputy Commissioner Gr VA, even if it is accepted that bills of entry were not reassessed but amended under section 149 of the Act, the fact still remains that the assessment in the impugned BoEs got modified/amendment was in accordance with the law and entitled the Appellant refund of excess CVD paid. ***** 5.7.3 For argument sake, even if it is accepted that bills of entry were not reassessed but amended under section 149 of the Act, the claims are still within ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed refund of duty paid by it and such refund is in consonance with the provisions of the Customs Act and the judgment of the Supreme Court in ITC; (iii) The amendment in the Bills of Entry attained finality in the absence of an appeal and the Deputy Commissioner does not have the power to review his own order; (iv) The claim for refund is not time barred; and (v) Sections 17 or 149 of the Customs Act do not provide time limit for seeking amendment of the Bills of Entry. 10. The submissions advanced by the learned special counsel appearing for the department and the learned counsel for the respondent have been considered. 11. It transpires that the respondent had earlier filed Bills of Entry in respect of the imported mobile phones and parts and accessories of mobile phones but did not claim the benefit of the Notifications under which a manufacturer is given an option to pay lesser rate of duty subject to fulfillment of certain conditions. Subsequently, in view of the decision of the Supreme Court in SRF regarding the conditions attached to the Notification, the Bills of Entry were amended in 2018 by the Deputy Commissioner, which order attained finality as no appeal was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not accepted by the Supreme Court and it was held that the endorsement made on the Bills of Entry would be an order of assessment and that when there is no lis, a speaking order is not required to be passed in "across the counter affair". The Supreme Court then examined the provisions of sections 17 and 27 of the Customs Act, both prior to the amendments made by Finance Act 2011 and after the amendments, and observed that there is no difference even after the amendments as self-assessment is also an assessment. 14. It needs to be noted that in Escorts Ltd. v. Union of India & Ors [2002-TIOL-2706-SC] , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (s) passed by the Customs, Excise and Service Tax Appellate Tribunal is to be upheld and that passed by the High Courts of Delhi and Madras to the contrary, deserves to be and are hereby set aside. We order accordingly. 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) 16. It would, at this stage, be appropriate to examine sections 17, 27, 149 and 154 of the Customs Act. 17. Section 17 of the Customs Act deals with assessment of duty. While sub-section (1) deals with assessment, sub-section (4) deals with re-assessment. The relevant portions of section 17 are reproduced below: "17. Assessment of duty - (1) An importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, self-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the entries made under section 46 or section 50 and the self-assessment of goods referred to in sub-section (1) and for this purpose, examine or test any imported goods or export goods or such part th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e computed from the date of such judgment , decree, order or direction; (c) where any duty is paid provisionally under section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in case of reassessment, from the date of such reassessment. (2) If, on receipt of any such application, the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied that the whole or any part of the duty and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund." 19. Section 149 of the Customs Act deals with amendment of documents and is reproduced below: "149. Amendment of documents Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the customs house to be amended in such form and manner, within such time, subject to such restrictions and conditions, as may be prescribed: PROVIDED that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the provisions of sections 149 and 154 of the Customs Act, observed as follows: "18. From a careful analysis of section 149, we find that under the said provision a discretion is vested on the proper officer to authorise amendment of any document after being presented in the customs house. However, as per the proviso, no such amendment shall be authorised after the imported 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 acciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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." (emphasis supplied) 25. The Telangana High Court in M/s. Sony India Pvt. Ltd. vs. Union of India and another [2021 TIOL-1707-HC-Telangana-CUS] also examined almost a similar controv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing an appeal u/s.128 or being amended under Sec.149 of the Act; and he could not have insisted that only an appeal is a proper remedy to amend the BoEs ignoring Sec. 149 of the Act. (emphasis supplied) 26. The contention of the Department, as noted in paragraphs 23, 24 and 26 of the aforesaid judgment are reproduced below: "23. It is contended that meanwhile the Supreme Court in ITC Ltd. (2 supra) held that refund under Section 27 would only be permissible when the Bill of Entry had been amended or modified under the provisions of the Customs Act, 1962; that in ITC Ltd. (2 supra), it was held that the refund under the provisions of Section 27 of the Customs Act, 1962 would only be available when Bill of Entry has been amended or modified under the provisions of Custom Act, 1962; that in the instant 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 reassessment as provided under the provisions of Section 128 of the Customs At, 1962 within such stipulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odified an order of assessment under any other relevant provision and that petitioner is trying to overcome limitations stipulated in Section 128. 37. The only condition required to be fulfilled for seeking amendment of documents such as a BoE under Section 149 is that such amendment should be sought 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. ***** 46. Moreover, the said order was passed on 28.06.2019 prior to the decision in ITC Ltd. (supra) on 18.09.2019. The Supreme Court has clarified in para no.47 of ITC Ltd. (supra) that an order of assessment can be modified either under Section 128 or under other relevant provisions of the Act, and thus clarified that modification of an order of assessment 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. ***** 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner (Appeals), therefore, committed no illegality in taking a view that refund has to be granted to the respondent as the order for amendment in the Bills of Entry had attained finality. 31. The second issue that needs to be decided is whether the refund claims were barred by time. The department contends that the period of one year should be counted from the date of assessment and not from the date of amendment was carried out in the Bills of Entry. This contention of the department has not found favour with the Commissioner (Appeals) and nor are we inclined to accept this plea of the department. The Commissioner (Appeals) held that if section 149 of the Customs Act relating to amendment in the Bills of Entry is made applicable, the cause of action for claiming refund would arise only after the amendment is made and so the limitation for claiming refund would start from that date. In coming to this conclusion, the Commissioner (Appeals) placed reliance upon the decision of the Bombay High Court in Keshari Steels vs. Commissioner of Customs, Bombay [2000 (115) E.L.T. 320 (Bom.)] , wherein what was examined was whether the rejection of the refund claim on the ground of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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