9911796707
TMI Blog2024 (7) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 9049, had filed the appeal before the learned Commissioner (Appeals) under Section 128 ibid against the assessed B/E. In so far as filing of appeal against the self-assessment is concerned, the Hon ble Supreme Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [ 2019 (9) TMI 802 - SUPREME COURT] have held that the self-assessed B/E is an assessment order, passed under the Customs Act, 1962 and thus, would be appealable. The submissions made by the appellants agreed upon that self-assessed B/E is an appealable order and can be appealed against before the learned Commissioner of Customs (Appeals) under Section 128 ibid. Thus, by setting aside the impugned order, the appeal is allowed by way of remand to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of customs duty in terms of Serial No.83(A) read with List 4 of Notification No.21/2002-Customs dated 01.03.2002. Accordingly, against the assessed B/E, the appellants have preferred an appeal before the Commissioner (Appeals) under Section 128 of the Customs Act, 1962. The appeal filed by the appellants was disposed of vide Order-in-Appeal No. MUM-CUSTM-AXP-APP-309/14-15 dated 21.08.2014 (for short, referred to as the impugned order ), holding that the appeal is premature and thus, the same is rejected. The learned Commissioner (Appeals) has made the following observations, in support of rejection of appeal filed by the appellants : 5. In the matter under consideration, it is neither claimed that assessment done by the officer is contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTI 3004 2099 and after realizing the mistake that the subject goods should appropriately be classified under CTI 3004 9049, had filed the appeal before the learned Commissioner (Appeals) under Section 128 ibid against the assessed B/E. In so far as filing of appeal against the self-assessment is concerned, the Hon ble Supreme Court in the case of ITC Limited (supra) have held that the self-assessed B/E is an assessment order, passed under the Customs Act, 1962 and thus, would be appealable. By relying upon the said judgement of the Hon ble Supreme Court, this Bench of the Tribunal, in the case of M/s. H R Johnson (supra) has allowed the appeal by way of remand to the learned Commissioner (Appeals). The relevant paragraphs in the judgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or reassessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, reassessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3), (4) and (5) of the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. 5. In view of the foregoing discussions, we are in agreement with the submissions made by the appellants that self-assessed B/E is an appealable order and can be appealed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
