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TMI Blog2004 (8) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the goods. Ld. JCDR has particularly relied on the proviso to Section 149 of the Customs Act. The provision does not authorise reassessment of Bill of Entry. It is only conferring discretion on the proper officer of Customs to permit the importer to amend his Bill of Entry subsequent to clearance of the goods on the basis of anterior evidence. In the present case, the reduced prices were not in existence at the time of clearance of the goods and therefore the proper officer of Customs was barred, under the proviso to Section 149, from allowing the importer to amend the declared value of the goods in the Bill of Entry. The appellants did not apply for such amendment either. Hence Section 149 was not applicable to the facts of the case. The provision appears to have been erroneously invoked by the lower authorities to reject the refund claims. On this limited point, the appellants seem to be supported by the Tribunal's decision in Sanghi Medical Centre [ 1997 (5) TMI 205 - CEGAT, NEW DELHI] , wherein it was held that a refund claim was not liable to be rejected by invoking Section 149. The assessments of the Bills of Entry had not been appealed against by the assessee and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants had placed orders for imports between March and September 1995. Where there was previous import of like goods, the purchase order reflected the price at which such goods had been previously imported. Where there were no previous imports of like goods, the price was indicated in the purchase order as PTBA (price to be agreed). The subject imports took place between December 1995 and May, 1996. The goods were assessed on the basis of the invoice price and duty paid accordingly. Subsequent to clearance of the goods against such payment of duty, the appellants negotiated with their supplier and obtained reduction of price of such goods and the latter issued credit note to the former for the differential price (difference between the price indicated in the invoice and the reduced price). The refund claims in question, which were based on these credit notes, were filed for the differential duty on the differential value of the goods. These claims have been rejected. Hence these appeals. 2. Heard both sides. Ld. Counsel submitted that the original authority and the first appellate authority had failed to appreciate the fact that the post-importation price reduction was in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Del.)] (iii) S. Kumars Ltd. v. CCE [2002 (141) E.L.T 146 (Tri.-Del.)] (iv) Priya Holdings (P) Ltd. v. CC [2003 (153) E.L.T. 104 (Tri.-Del.)] In the case of J.M. Industries (supra), the Tribunal held that the assessment of a Bill of Entry was an Appealable order, while, in the case of HCL Perot Systems Ltd. (supra), it was held that a refund claim for duty paid on imported goods as assessed on the relevant Bill of Entry was not maintainable where the assessment had not been challenged. In S. Kumars, Priya Holdings and HCL Perot Systems (supra), the Tribunal followed the Supreme Court's ruling in CCE v. Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 (S.C.). The appeal filed by M/s. HCL Perot Systems Ltd. was dismissed by the Supreme Court [2004 (165) E.L.T. A77]. Ld. JCDR also relied on the Tribunal's decision in Birla VXL Ltd. v. CC. In 2002 (145) E.L.T. 614 (Tri-Mum.) in support of his submission that, where the price of imported goods had been reduced after importation and clearance of the goods, the reduced price was not a price contemplated in Section 14 of the Customs Act. An endeavour was also made to distinguish Karnataka Power Corporation case. In this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price and the latter issued credit note to the former in respect of the differential pirce. The refund claims filed by the appellants are in respect of the duty paid on the differential value. It has been held by the lower authorities to the effect that it was not permissible in law to reassess the Bills of Entry under Section 149 of the Customs Act on the basis of posterior evidence furnished by the importer after clearance of the goods. Ld. JCDR has particularly relied on the proviso to Section 149 of the Customs Act, which reads as under : 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 : Provided that no amendment of a Bill of Entry or 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. JCDR has submitted that any amendment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The lower price which was arrived at in negotiations between the appellants and their supplier subsequent to the clearance of the goods could not be the transaction value under Section 14 as held by this Tribunal in the case of Birla VXL Ltd. (supra). What was paid by the appellants was the duty correctly assessed on the basis of transaction value. That duty was not liable to be refunded to them on the basis of credit notes issued to them by their supplier subsequent to clearance of the goods for home consumption. This is because the above assessments had already become final and binding on the appellants. The assessment of a Bill of Entry is appealable according to the Tribunal's decision in J.M. Industries (supra), Priya Holdings (supra) and HCL Perot Systems (supra). Where such assessment has not been challenged in appeal, it is not open to the assessee to challenge it indirectly by filing a refund claim under Section 27 of the Customs Act. The contra view taken in Hindustan Petroleum Corporation case (supra) is not good law as it is against the view taken by the Apex Court. In the case of Flock (India) Pvt. Ltd. (supra), it was held by the Apex Court that, where an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed under Section 27 of the Customs Act without filing appeal against assessment of the relevant Bill of Entry and succeeding in such appeal. The Larger Bench chose to leave the question open, and so did it in a subsequent similar case vide Albert David Ltd. v. CC, New Delhi [2004 (168) E.L.T. 462]. To our mind, the issue already stands settled by the Apex Court in numerous cases, which we have already mentioned. The binding case laws on the issue can be had from HCL Perot Systems, Motilal Dulichand, Super Cassettes Industries etc., (supra). It is to the effect that assessment of a Bill of Entry is an appealable proceedings and the same cannot be challenged through refund claim under Section 27 of the Customs Act. 8. In the instant case, the assessments of the Bills of Entry had not been appealed against by the assessee and the same became final and binding on them. It was not open to them under the Customs Act to challenge the assessments through refund claims filed under Section 27 of the Act. It has been argued to the contra by ld. Counsel relying on the Supreme Court's decision in Karnataka Power Corporation (supra) wherein the Court remanded the case to the original auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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