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2015 (10) TMI 1285 - HC - CustomsApplication for modification in the Bill of entry or re-assessment of bill of entry - assessee initially paid the CVD using DEPB credit - What the respondent/assessee actually requested in their representation was for "re-assessment of their Bill of Entries". But, the only object of the assessee in making such a request was to enable them to pay CVD by cash and to seek equivalent credit in DEPB Scrip. - Powers of the tribunal – whether Tribunal was correct in sustaining the appeal - Held that:- Theoretically, our answer would be in the negative, that is in favour of the revenue. Whether a miscellaneous provision of law can be invoked to permit a thing, which is prohibited by a specific provision or not - Held that:- Even here, if we divest this case from the rest and look at the question of law on a theoretical basis, it is correct to say that if something is not permitted by a specific provision, neither of the parties can take recourse to a residuary or an omnibus provision. But, unfortunately, what the Original as well as the first Appellate Authorities had lost sight of is the fact that the assessee actually wanted the entries in their Bill of Entries to be modified only for the purpose of enabling them to make payment in cash - It is not necessary for an assessee, while making a request to the jurisdictional Excise Officer to quote a provision of law or to use only the proper language as stated in the statute. Whether Tribunal can exercise the discretion of the proper officer under Section 149 of the Customs Act, 1962. - Held that:- Without quoting Section 149 and without using the appropriate language relevant for the action, namely "Amendment of Bill of Entries", the assessee had used the wrong expression "re-assessment". This cannot be taken advantage of by the Department to deprive the assessee from making use of DEPB Scrip for claiming credit and also disabling them to make payment in cash. The assessee cannot be made to lose on both sides, by quoting a simple provision of law and raising a theoretical proposition. – Decided partially in favour of the assessee.
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