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TMI Blog2023 (8) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... g used fo claim of exemption and consequent upon making such amendment the proper officer shall re assess the bill of entry as per provision of Section 17(4) of the Customs Act, 1962 - Section 17(4) allows re assessment of self assessment on verification, examination or testing of the goods or otherwise finding self assessment could be done correctly by the proper officer. The expression or otherwise is comprehensive to include judicial orders directing the same, when self assessment was not proper. Therefore, the amendment and reassessment to be carried out has been correctly allowed by the Commissioner (Appeals), and there are no infirmity in his order. Thus, the entitlement of a person, if it is eligible for exemption notification has to be liberally provided and amendment can be allowed even after clearance at any stage with in a reasonable time, as per law. Again, amendment once carried out, re assessment by the proper officer as per the direction of the higher Appellate Authority, shall definitely be the legal consequence to follow. The Learned Commissioner (Appeals) has correctly interpreted the law by Ex Visceribus Actus by reading provisions of Section 149 relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the respondent to amend Bills of Entry under section 154 read with section 149 of the Act as well as refund of the amount, purported to have been paid in excess, was rejected by the adjudicating authority, primarily on the following basis, as mentioned in Para 14 of the OIO, reproduced as under. From the above, it becomes clear that: a. The claimant at the relevant time of filing all the 26 impugned Bills of Entry in the EDI System had failed to claim the benefit of Notification Nos. 4/2006-CE [Sr. No. 67] and Notification No. 12/2012-CE (Sr. No. 133). b. The claimant at the time of assessment of all the 26 Bills of Entry, had not requested for provisional assessment for ANY of them. c. The claimant had not paid the assessed import duty under protest. d. The claimant had not followed the legal procedure as laid down in the Customs Act, 1962 as they had not challenged the assessment of any of the 26 impugned Bills of Entry before the office of the Commissioner of Customs (Appeal). 2. Being aggrieved with the impugned order, the respondent filed the appeal before the Commissioner (Appeals) 3. The respondents during course of appeal relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is imperative that the importer in this case should have been more vigilant. (ii) Section 46 of the Customs Act, 1962 makes it mandatory for the importer to make entry for the imported goods by presenting a Bill of Entry electronically to the proper officer. If the self assessment is found incorrect, the duty may be reassessed. In both the cases, where self assessment is not done or when self assessment is done, invariably the reassessment is required under Section 17 and the importer or exporter can opt for provisional assessment of duty by the proper officer of Customs if they are not satisfied with the assessment. In this case, there was no request for provisional assessment and the assessment was final. (iii) In the EDI system, whenever mistakes are noticed after submission of documents, amendment to the Bill of Entry is carried out with the approval of the Deputy/Asstt. Commissioner. The request for amendment may be submitted with the supporting documents. Further, in the EDI System any time after assessment and before Out of Charge Order, a Bill of Entry can be recalled and reassessed and put to re-assessment by the Dy/Asstt. Commissioner concerned, it so warrant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the case of HINDALCO INDUSTRIES LTD. Versus COMMISSIONER OF CUSTOMS, AHMEDABAD [2013 (296) E.L.T. 383 (Tri. - Ahmd.). 6. Learned AR relied upon the following judgments: 2000(120) ELT 285 (SC)-CCE, Kanpur Vs. Flock (I) P Ltd 2013 (296) ELT 283 (Tri.- Ahmd)- Hindalco Industries Ltd Vs. CC, Ahmdabad 2008 (225) ELT 113 (Tri- Mum)- CC (Imp), Mumbai Vs. LK Steel Factory P Ltd. 2006 (108) ECC 411- CC (Import and Gen Vs. Unicorn Medident P Ltd. 2007 (216) ELT 134 (Tri.- LB) CC, Nhava Sheva Vs. Eurotex Indus. Exports Ltd. 7. As a counter, the respondents in their cross objections and during hearing have submitted as follows: (i) The O-I-0 has not correctly appreciated that Appellant has submitted 26 applications with request to consider to allow benefits of exemption first for excess CVD paid and to allow such unconditional exemption, as the issue for allowing such exemption has attained its finality. (ii) Revenue has filed this appeal only on the ground that without challenge to assessment, refund cannot be claimed. However, such incorrect assessment in all 26 Bill of Entry is challenged by Respondent through applications, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that it is statutory does not matter one way or the other. There are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve. A distinction between the provisions of statute which are of substantive character and were built-in with certain specific objectives of policy on the one hand and those which are merely procedural and technical in their nature on the other must be kept clearly distinguished. (1965 (3) SCR 626; 1989 (1) SCC 345; 1967 (1) WLR 1000 and Statutory Interpretation by Francis Bennion, 1984 edition, p. 683 relied on]. [para 11] Interpretation of statute - Exemption how to be interpreted. - It appears to us the true rule of construction of a provision as to exemption is the one stated by this Court in Union of India Ors. v. M/s. Wood Papers Ltd. Ors. [1991 JT (1) 151 at 155]: Truly, speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue appeal or 0-1-0. Adjudicating authority on one hand observes that ignorance of law is no excuse but on the other hand he has not correctly appreciated that it apply to both sides. Govt also can not retain such excess payment of CVD amount which is not required to be paid by importer in the law. In support, the advocate for appellant places reliance on the decision reported in 2007 (209) ELT 321 (S.C) in the matter of Share Medical Care V/s. UOI, to drive home their point that exemption can be claimed even at a later stage. 9. Revenue has relied upon but has not correctly appreciated and applied CBEC Circular No. 17/2011- Customs, dated 8-4-2011 which has clearly clarified and directed in its Para 4 which is reproduced :- Under the new scheme of self-assessment, the Bill of or Shipping Bill that is self-assessed by importer or exporter, as the case may be, may be subject to verification with regard to correctness of classification, value, rate of duty, exemption notification or any other relevant particular having bearing on correct assessment of duty on imported or export goods. This directive clearly shows that proper officers are also required to ascertain correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been allowed, even when claimed after clearance of the goods. This O-1-A has simply earlier allowed appeals of the Respondent directing adjudicating assessing officer to allow exemption, Re-assess Bill of Entry u/s 17(4) and amend the Bill of Entries u/s 149 of the Customs Act 1962 and thereafter, allow the consequential benefit of Refund of the excess duty paid by Respondent at the time of clearance of imported goods. Thus, the O-1-A is completely acceptable as legal and proper. 11. When the Commissioner(Appeals) directed to re-assess the said Bill of Entry in terms of Notification, AC, customs, ICD, Ahmedabad should have first implemented the order and returned the excess amount recovered from the Respondent before filling this Appeal. 12. The entire basis for this revenue's appeal is that the respondent has not challenged assessment order before Commissioner(Appeals), whereas the respondent has taken a view that they have claimed benefit of Notification, which was not claimed at the time of import and requested the AC, Customs, ICD, Ahmedabad to first allow them duty exemption under the respective notification and then allow them the consequential refund of exces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment has been reviewed under Section 18 or modified in appeal, the benefit of notification not claimed earlier cannot be claimed at appellate stage, after self assessment has been done and duty paid. We find that the Section 149 permits amendment to documents including bill of entry even after clearance but on the basis of documentary evidence, which ought to be in existence at the time the goods were cleared. In view of definite findings of the Commissioner (Appeals), while permitting amendment that no new documents are being used fo claim of exemption and consequent upon making such amendment the proper officer shall re assess the bill of entry as per provision of Section 17(4) of the Customs Act, 1962 which provision is reproduced below: Where it is found on verification, examination or testing of the goods or otherwise that the self assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, reassess the duty leviable on such goods. 15. In view of above Section 17(4) allows re assessment of self assessment on verification, examination or testing of the goods or otherwise finding self assessment co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as considering the very same notification 64/88 and grant of exemption to hospital equipments imported by specified category of hospitals. The Court held that an Individual Diagnostic Centre if covered by the notification, could claim import of equipments without paying customs duty. But in case of failure on the part of the persons availing the benefit to satisfy conditions laid down in the notification, it is incumbent on the authorities to recover such duty. 18. The Court stated; The competent authority, therefore, should continue to be vigilant and check whether the undertakings given by the applicants are being duly complied with after getting the benefit of the exemption notification and importing the equipment without payment of customs duty and if on such enquiry the authorities are satisfied that the continuing obligation are not being carried out then it would be fully open to the authority to ask the person who have availed of the benefit of exemption to pay the duty payable in respect of the equipments which have been imported without payment of customs duty. Needless to mention the government has granted exemption from payment of customs duty with the sole ..... X X X X Extracts X X X X X X X X Extracts X X X X
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