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TMI Blog2023 (4) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods would lead to conclusion that it is the Proper Officer who has to come to the conclusion in some conditional or may be provisional assessment or investigation etc, that self assessment was incorrect. Nothing in the expression of Section 17(4) indicates that re-assessment of duty can be done at the request of party which has self-assessed its Bill of Entry and after clearance wants another benefit. Therefore, construing the expression or otherwise in Section 17 (4) by the rule of ''Noscitur a Sociis'', it is opined that material has to be of the nature found out on verification, examination or testing of the goods or otherwise (which expression) can include on investigation etc., indicating to the Proper Officer only that the self assessment was not done correctly. It is also found that the expression, without prejudice to any other action which may be taken under this Act , Clause indicates that Clause 17 (4) has been worded, inter alia, as an enforcement provision and cannot be construed liberally in favour of assessee so as to allow it to change its own self assessment. This also fortifies and supports our interpretation. Since, the re-assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It, therefore, appeared that the appellant wrongly claimed exemption from payment of Special Additional Duty under Notification No. 21/2012-Custom which resulted in short levy of duty of the 4% Special Additional Duty of Customs amounting to Rs. 2,92,612.00. Consequently, a Show Cause Notice F. No. VIII/32-08/CERA/ICD-Sanand dated 08-01-2014 was issued to the appellant. Party also made application for amendment and re-assessment of the subject Bills of Entry for availing APTA benefit under Notification No. 72/2005-Customs dated 22-07-2005 (Sr. No. 188A) which they missed at the time of filing the said Bill of Entry, though they were having the requisite documents for availing such benefit. Both the issues were decided, vide impugned order, wherein, the adjudicating authority held as under: 2. Re-assessed the impugned Bills of Entry, filed and self assessed by the appellant under Section 17(1) of the Customs Act, 1962, under Section 17(4) of the Customs Act, 1962 and allowed benefit of Notification No. 72/2005-Customs dated 22-07-2005; 2.1 Consequent to such re-assessment, determined the Special Additional Duty of Customs payable as Rs. 2,87,163.00, which was short paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants), on their own notice that they had not claimed the benefit of Notification No. 72/2005-Cus and approached first appellate authority in statutory right of appeal. The Commissioner (Appeals) directed consideration by the assessing authority of Notification No. 72/2005-Cus and same order was upheld by this Tribunal. 6. Learned AR pointed out that filing of re assessment, after 10 months of final assessment was improper and illegal and that too in a proceeding which was relating to show cause notice having been issued seeking levy of SAD. Therefore, the adjudicating authority not only travelled beyond show cause notice but also that even against the order of self-assessment. Re-assessment for the purposes of refund even in the self-assessment proceeding should have been done by going in for appeal as per law. As was also upheld by the Commissioner (Appeals) that the party (the present appellant), never challenged the assessment order before the Commissioner (appeals), as is the requirement, as per the settled law. 7. We have considered the rival submissions, we find that the issue is no more res-integra and has already been settled in ITC Ltd. VS. COMMISSIONER OF CEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra). 45................... 46................. 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 assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n writing, the proper officer shall pass a speaking order on the re- assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. (6) Where re-assessment has not been done or a speaking order has not been passed on re- assessment, the proper officer may audit the assessment of duty of the imported goods or export goods at his office or at the premises of the importer or exporter, as may be expedient, in such manner as may be prescribed. 7.2 If on verification, examination, testing or otherwise, the self-assessment was not found to be done correctly by the Proper Officer, the same could be subjected to re-assessment, it appears there is no room in the provision of Section 17(4), for the assessee to seek re-assessment of his own self-assessment which is a course available only to the proper Officer, based on his own verification, examination, testing of the goods or otherwise. 8. We are of the view that the expression or otherwise when read in conjunction with expressions like verification, examination or testing of the goods would lead to conclusion that it is the Proper Officer who has to come to the ..... 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