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TMI Blog2025 (4) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... iate proceedings? 3. The facts leading to the filing of the instant appeal are stated in brief as follows. M/s. Pacific Cyber Technology Pvt. Ltd.- Appellant (Importer) herein filed Bill of Entry No. 5936140 dated 4.12.2019 at JNCH concerning Invoice No. SKW20191119-1 dated 19.11.2019. Another Bill of Entry No. 5793005 dated 22.11.2019 at Air Cargo Complex has also been filed by them inadvertantly for the same invoice No.SKW20191119-1 dated 19.11.2019 in place of correct Invoice No. SKW20191121-3 dated 22.11.2019 and customs duty of Rs. 14,72,009/- has been paid vide challan dated 22.11.2019 whereas the correct customs duty for the said B/E would have been Rs.4,41,603/-.Resultantly they paid excess customs duty of Rs. 10,30,406/-. 4. Upon realising the mistake, the appellant approached the concerned officer for re-assessment of B/E No. 5793005 dated 22.11.2019 in order to correct the invoice particulars alongwith relevant Invoice No. SKW 20191121-3 dated 22.11.2019. Upon which the amendment of the B/E was allowed and the B/E dated 22.11.2019 was re-assessed and the order of re-assessment dated 5.2.2020 was passed by the Assistant Commissioner of Customs and customs duty was re-as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e self-assessment modified u/s. 128 ibid and only thereafter the re-assessment can be done in accordance with the order of the Appellate Authority. In support of his submissions, learned Authorised Representative relied upon the law laid down by the Hon'ble Supreme Court in the matter of M/s. ITC Ltd. vs. CCE, Kolkata-IV; 2019 (368) ELT 216 (SC) = (2019) 17 SCC 46. 6. I have heard learned Consultant for the appellant and learned Authorised Representative on behalf of Revenue and perused the case records including the synopsis/written submissions and case laws placed on record. Learned consultant for the appellant mainly relied upon section 149 ibid while submitting that the re-assessment in their case is squarely covered under the proviso to Section 149 ibid. Per contra learned Authorised Representative pressed upon Section 128 ibid. For ready reference Sections 128 and 149 ibid are extracted hereunder:- "128. Appeals to Commissioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.2019 it was 10 pallets (quantity 36,000) with the gross weight of 2143/2148.20 kg whereas in the Invoice dated 19.11.2019, 20 pallets (quantity 1,20,000 nos.) were imported having gross weight of 6960.400 kg. But due to oversight for the import of 10 pallets of invoice dated 22.11.2019 customs duty applicable for 20 pallets has been paid. 9. While deciding against the applicability of S.149 ibid, learned Commissioner (Appeal) has recorded a finding that the proviso therein has given emphasis that no amendment of a bill of entry is authorised to be amended after clearance of the imported goods, which in my view is completely unfounded and without any basis. Learned Commissioner also relied upon the decision of the Hon'ble High Court of Delhi at New Delhi in the matter of Terra Films Pvt. Ltd. vs. Commissioner; 2011(268) ELT 442 (Del.) and recorded a finding that the said decision highlighted that for amendment to be allowed u/s. 149, it should be based on documentary evidence in existence and physical verification of the documents and examination vis-à-vis the goods, otherwise it is impossible. 10. Section 17(4) or (5) ibid, as the case may be, comes into effect only if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot of "amendment" inasmuch by converting from one scheme to another, it was not only addition of word 'cum' duty drawback, but change of entire status and character of the documents. Even if it was to be taken as a case of amendment, the proper officer may not be in possession of the documents sought to be amended after lapse of such a long period, particularly when the goods already stood exported. For enabling an exporter to draw the benefits of any scheme, not only physical verification of documents would be required, but as is noted by both the authorities below, the verification of the goods of export as also their examination by the Customs was necessarily required to be done. In the given factual circumstances, that was rightly held to be impossible. The Commissioner in the remand case rightly distinguished the cases cited on behalf of the exporter from the facts of the present. The finding of fact as arrived at by the Commissioner has been rightly upheld by the CESTAT." [Emphasis supplied] According to me the reliance placed on the aforesaid decision for rejecting the amendment is totally misplaced as the Hon'ble High Court therein has specifically observed that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such time, subject to such restrictions and conditions, as may be prescribed. As per the provisio, 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 in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported as the case may be. xxx xxx xxx 18. From a careful analysis of section 149, we fnd that under the said provision a discretion is vested on the proper ofcer to authorise amendment of any document after being presented in the customs house. However, as per the proviso, no such amendment shall be authorised after the imported goods have been cleared for home consumption or warehoused, etc. except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, etc. Thus, amendment of the Bill of Entry is clearly permissible even in a situation where the goods are cleared for home consumption. The only condition is that in such a case, the amendment shall be allowed only on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund can be claimed but the moot point is Supreme Court has not confined modification of the order through the mechanism of section 128 only. Supreme Court has clarified that such modification can be done under other relevant provisions of the Customs Act also which would include section 149 and section 154 of the Customs Act. xxx xxx xxx 24. In the instant case, petitioner has not sought for any refund on the basis of the self-assessment. It has sought re-assessment upon amendment of the Bills of Entry by correcting the customs tarif head of the goods which would then facilitate the petitioner to seek a claim for refund. This distinction though subtle is crucial to distinguish the case of the petitioner from the one which was adjudicated by the Supreme Court and by this Court. 25. Grievance of the petitioner is not on the merit of the self-assessment as the petitioner is aggrieved by the failure on the part of the respondents to carry out amendment in the Bills of Entry by replacing the incorrect CTH by the correct one namely by replacing CTH '85176990' with '85176930' which was declared inadvertently by the petitioner at the time of fling the Bills of Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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