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TMI Blog2025 (3) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... [2004 (170) ELT A-308 (SC)], and accordingly the Ld. Commissioner(Appeals) has termed the order of the Ld.Deputy Commissioner, Customs Division, Paradeep as a reasoned one that deserves to be accepted. 2. M/s.Goa Carbon Ltd. are manufacturers and exporters of Calcined Petroleum Coke (CPC) classifiable under CTH 2713 1200. It is their contention that the department subjected them to a levy of Cess @ 10 per MT, Education Cess @ 2% and SHE Cess @ 1% on the CPC exported during the period April 2005 to January 2012. Shri S. Nagaraja, Ld.Advocate for the appellant has impressed that the impugned Cess was leviable under the Coal Mine (Conservation and Development) Act, 1974 read with Notification No.SO/727/(E) dated 25.06.2003 issued by the Ministry of Coal, Govt. of India and was not leviable on CPC which was exported, as the same was a manufactured petroleum product and not excavated from the coal mines. He contends that the said Cess was incorrectly levied by the assessing authorities and accordingly the appellant filed three refund applications covering exports made for the period April 2005 to August 2011, October 2011 and January 2012, collectively for an amount of Rs.20,44 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .M. (Operations) and Shri N.R. Barik. The fact being that CPC manufactured and exported by the appellant, not being cooking or non-cooking coal did not attract duty of excise leviable on cooking and non-cooking coal @ Rs.10.00 per MT vide Notification No.SO-727/(E) dated 25.06.2003 issued by the Ministry of Coal, Govt. of India under the Coal Mine (Conservation and Development) Act, 1974. It is against this communication dated 30.03.2016 that the appellant approached the Commissioner(Appeals) who vide order under challenge dismissed the appeal filed, upholding the order/communication dated 30.03.2016 of the Deputy Commissioner, Customs Division, Paradeep. 5. The appellant has vehemently argued before us that they seek recourse to provisions of Section 149 of the Customs Act seeking amendment of the documents while as an alternative plea they also invite our attention to the provisions of Section 154 of the Customs Act. To appreciate the contentions of the appellant, it is imperative that the said two Sections are recorded in this order:- SECTION 149. Amendment of documents. - Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T A 308 (S.C.)] to state that the assessment finalized was not challenged by filing an appeal and therefore the refund claims were not maintainable. The ld.advocate fairly concedes that the assessment of the Shipping Bills was however not challenged by way of appeal. 7. It is a fact that CPC, not being coal, raised in a mine nor manufactured from cooking coal and having been extracted from crude oil being a petroleum product is not leviable to Cess in terms of Section 6(1) of the Coal Mines (Conservation and Development) Act, 1974 read with Notification No.SO/727/(E) dated 25.06.2003. This contention has admittedly not been disputed by the lower authorities. We therefore find that the claim of the appellant for refund of duty has been rejected not on merits but on legal considerations and technicalities and provisions of law. It is now in this context that the scope and applicability of the provisions of Section 149 or 154 of the Customs (supra) resorted to by the appellant in appeal proceedings have to be examined. However, before we proceed with the said analysis, it would be appropriate to incorporate the specific contentions of the appellants verbatim. Thus : "(i) the Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantiate their above stand. (a) UOI vs. Hero Cycles Ltd. - 2010 (252) ELT A 103 (SC) (b) Commissioner of Customs, Guntur vs. Sameera Trading Company [2011 (264) ELT 578 (Tri.-Bang.)] (c) Oswal Agloimpex Pvt.Ltd.vs. Commissioner of Customs, Kandla [2012 (283) ELT 300 (Tri.-Ahmd.)] (d) Tata Iron & Steel Co. Ltd. vs. Commissioner of Customs (Port), Kol. [2006 (202) ELT 719 (Tri.-Kolkata)] (e) CCE vs. Muneer Enterprises vide Final Order Nos.1071 to 1075/2010 Dt.15.07.2010 (f) CC(Customs Promotion), Mumbai v. SAIL [2016-TIOL-735-CESTAT-MUM] (viii) that interest is payable in the refund amount as per Hon'ble Supreme Court's judgement in the case of Ranbaxy Laboratories Ltd. vs. UOI - 2011 (273) ELT 3 (SC); (ix) that there is no case of unjust enrichment in the subject dispute as Hon'ble Andhra Pradesh High Court's decision in the case of Asia Pacific Commodities Ltd. vs. ACC, Kakinada - 2012 (280) ELT 481 (AP). 8. While it is a fact that the appellant had filed various shipping bills as aforesaid during the material period, themselves incorporating the levy of Cess @ 10/- per MT, Education Cess @ 2% and SHE Cess @ 1% on the said goods and that the Shipping Bills w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained." 9. The said order in detail was passed in review proceedings of the hon'ble apex court's own order in the said case of Priya Blue Industries Ltd. [2004 (170) E.L.T. A-308 (S.C.)], wherein appeal filed by the assessee against Tribunal's order was dismissed by the top court holding that any refund claim contrary to an assessment order (that was not challenged) was not maintainable. The apex court while setting aside the orders of this Tribunal, in the case of Commissioner of Customs, Central Excise & Service Tax (Appeals-II), Hyderabad v. Standard Consultants Ltd. [2022 (381) E.L.T. 582 (SC)], relying on its decision in the case of ITC Ltd. [2019 (368) E.L.T. 216 (SC)], categorically held that any refund without challenging assessment order is not permissible. 10. Given the aforesaid prevailing legal perspective, the appellant herein seeks to take recourse to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 149 of the Act provides for amendment of documents. It categorically refers therein to section 30 and 41 of the Customs Act thereby implying reference to Bill of Entry and Shipping Bill i.e. import and export documents respectively. It may at this juncture be pointed out that even a recourse to such amendment provisions is not completely open ended and would be subject to stipulations as prescribed in law. 14. This Tribunal in the case of Commissioenr of Customs, Nhava Sheva v. Panasonic Battery India Co.Ltd. [2010 (256) E.L.T. 623 (Tri)], in a similar context pleading correction of an assessed Bill of Entry had the following to state : "5. As it appears from the records, the assessee had requested for a reassessment of the Bill of Entry. They submitted that there were clerical errors in the Bill of Entry which required to be corrected in terms of Section 154 read with Section 149 of the Customs Act. This was the request to the assessing authority. As rightly submitted by the learned SDR, Section 154 is not available for this purpose inasmuch as, under that provision, the Central Government, the Board or any officer of Customs is authorized to correct any clerical or ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th edition)
Appeal, n. A proceeding undertaken to have a decision reconsidered by bringing it to a higher authority; esp., the submission of a lower court's or agency's decision to a higher court for review and possible reversal X X X X Extracts X X X X X X X X Extracts X X X X ..... plifying the grounds on which basis, provisions of Section 149 and Section 154 of the Customs Act cannot be resorted to and made applicable to the issue herein. The appellant had themselves filed the shipping bills in the manner as aforestated incorporating the said cess. It is apparent that there is no arithmetical or clerical mistake in the assessments so done. The assessment to cess, is indeed a consequence of conscious action taken by both the sides. Irrespective of the fact of whether it being the right or wrong course of action, it cannot be considered as error arising from an accidental slip or omission in the decision or order of the assessing authority, hence the question of invoking the provisions of Section 154 for correction of clerical/arithmetical error cannot be applied to in the present matter. Even in the case of Paras Electronics (P) Ltd. v. UOI [1996 (83) E.L.T. 261 (SC)], while not admitting the appellant's plea seeking refund though on a different ground and not related to Section 149 or Section 154 of the Customs Act, the Court had observed as : "In the first place, in the proceedings which emanated for levy of duty the order became final and without having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, Kolkata-IV (supra). The question which arose before the Supreme Court was whether in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty could be entertained. 22.1 From the question itself, it is clear that the issue before the Supreme Court was not invocation of the power of reassessment under Section 17(4) or amendment of documents under Section 149 or correction of clerical mistakes or errors in the order of self-assessment made under Section 17(4) by exercising power under Section 154 vis-a-vis challenging an order of assessment in appeal. The issue considered by the Supreme Court was whether in the absence of any challenge to an order of assessment in appeal, any refund application against the assessed duty could be entertained. In that context Supreme Court observed in paragraph 43 as extracted above that an order of self-assessment is nonetheless an assessment order which is appealable by "any person" aggrieved thereby. It was held that the expression "any person" is an expression of wider amplitude. Not only the revenue but also an assessee could prefer an appeal under Section 128. Having so held, Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d only arise after the order is amended. The relief of refund claimed is not maintainable before the order of assessment is amended or modified as held by the Supreme Court in Priya Blue Industries ................." (iii) Steel Authority of India Ltd. vs. Commr. of Cus., Chennai [2016 (343) E.L.T. 602 (T)] In the said case, refund claims filed by the party were returned to them having been filed prematurely and directed to refile the same post re-assessment of the bills of entry. (iv) IOCL vs. Commissioner of C.Ex. & Cus., Vadodara-II [2015 (321) E.L.T. 292 (Tri-Ahmd.)] In the said case the question concerned was with reference to disposing off the assessee's request for action under section 154 of Customs Act after four years by stating that the assessee should have filed appeal against the assessment. 23. In view of the discussions aforesaid the reliance on case law support as invited by the appellant is clearly out of context. None of the cited cases advocate adoption of the mechanism of section 149 or section 154 of the Customs Act, where the only course of action and the remedy in law lies in the mechanism of appeal as contained in Chapter XV of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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