9911796707
TMI Blog2025 (3) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities have adverted to the ruling of the hon'ble apex court in the case of Priya Blue Industries Ltd. vs. Commissioner [2003 (11) TMI 600 - SC ORDER] to state that the assessment finalized was not challenged by filing an appeal and therefore the refund claims were not maintainable. A person aggrieved by any assessment order is required to file an appeal against the said assessment undertaken, in respect of the shipping bills for which refund is sought, to have the said assessment order nullified - The law under Section 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. The orders of both the lower authorities are well reasoned and self-speaking, concisely amplifying 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.20,44,088/-. The ld.advocate further submits that the said refund applications were not processed by the department despite umpteen requests and representations made. Subsequently, the Deputy Commissioner of Customs, Paradeep Division vide letter No.VIII-CUS-33(02)/PDP/09/Part-I dated 30.03.2016 responded to as under:- "In view of the above, your refund applications/claims, even if presumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, authorise any document, after it has been presented in the custom 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 after the imported goods have been cleared for home consumption or deposited i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Calcined Petroleum Coke manufactured in their factory and classifiable under Central Excise Tariff Heading 27131200 of the CETA, 1985 has been exported by them; Section 6(1) of the Coal Mine (Conservator and Development) Act, 1974 read with ministry of coal Notification S.O. 727 (E) dated 25.05.2003 makes provision for levy of cess as duty of excise on Coking Coal and Non-coking Coal raised a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 were assessed finally under Section 17 of the Customs Act as filed, accepting the appellant's contentions, and that no formal protest of any type had been raised at the time of assessment so done; it however can be noted from records that a sense of protest as to levy of such imposts on CPC does arise later in the day, as is clear from the communications subsequently addressed to the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions of Section 149 and Section 154 of the Customs Act, for the remedy sought. When the law as laid down by the apex court is so specific, it prima facie belies logic as to how recourse to Section 149 and Section 154 can be resorted to, arrive at the desired outcome, as contemplated by the appellant to flow from the proposed action in terms of Section 149 or Section 154 of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 arithmetical mistake or any error arising from any accidental slip or omission. The mistake in the present case, if any, was not on the part of the assessing authority (Assistant Commissioner of Customs) but on the part of the assessee. The assessing authority accepted the declared value and assessed the goods to duty of Customs. It was the assessee who might have made mistakes while presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and aspects of working. 16. Indeed, however the appellant without seeking a revision to the assessment made and having got the original assessment set aside, filed three refund claims vide applications dated 29.08.2011, 18.11.2011 and 13.02.2012 claiming refund of cess @ Rs.18,34,276/- Rs.1,04,906/- and Rs.1,04,706/- in respect of relevant shipping bills and also wrote to the department. A copy of one such letter is scanned hereinbelow : 17. The objective of recording one of such communication for ready reference is to show that the appellant while pointing out the non-levy of the cess assessed, unequivocally sought refund of the said amount, allegedly "wrongly levied". There is no whisper of seeking any amendment of the impugned export documents or terming the said payment of cess on account of clerical/arithmetical errors. Least of all, there is no word or indication therein of adherence and seeking recourse to the provisions of section 128 of the Customs Act, against the levy so assessed. The law provides for an appeal mechanism which cannot be substituted, by seeking recourse to the provisions concerning amendment or correction of the relevant documents. It is settled law tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 that order set aside by a competent court there would be no question of grant of refund merely ................................." This important obiter in the case, is undisputedly the law of the land and has been held so in a series of cases. 21. In view of aforesaid, it is clear that amendment of an export document, by way of clerical/arithmetic oversight, cannot potentially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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, Supreme Court opined in response to the question framed that the claim for refund cannot be entertained unless order of assessment or self-assessment is modified in accordance with law by taking recourse to appropriate proceedings. It was in that 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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, 1962. 24. In view of our findings above, we find no substance in the appeal filed and the same is therefore liable to be dismissed. We note that the Commissioner(Appeals) has correctly applied the law as laid down by the apex court in the case of Priya Blue Industries in the matter. The order of the lower authority is therefore maintained and the appeal filed is dismissed. (Order p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
