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2022 (8) TMI 506 - AT - CustomsRefund claim - refund rejected on the ground that the bills of entry under which assessments were made were not assailed and unless the bills of entry were modified the refund cannot be sanctioned - if bills of entry have been self-assessed and goods are cleared on the basis of such self-assessment can a refund be sanctioned without self-assessed bills of entry being assailed and modified? - HELD THAT:- Prior to 2011, assessment under Section 17 had to be done by the “proper officer” only. After 2011 section 17 has been amended and a system of self-assessment by the assessee has been introduced. This self-assessment under Section 17 (1) is subject to re-assessment under Section 17 (5) by the proper officer. It often happens that the Customs Risk Management System [RMS] selects some bills of entry only for assessment by the proper officer and other bills of entry are cleared on the basis of self assessment itself. Assessment is a quasi-judicial order which can be appealed against before the Commissioner (Appeals) by the importer or Revenue whether or not any speaking order is passed while assessing the bills of entry. Similarly, shipping bills in respect of exports can also be appealed against both by the Revenue and by the importers/ exporters - if duty has been paid in excess, a refund can be claimed under section 27 which is not a quasi-judicial, procedure to re-open the assessment. It has been held in the case of Priya Blue [2004 (9) TMI 105 - SUPREME COURT] and Flock India [2000 (8) TMI 88 - SUPREME COURT] that a refund can be sanctioned only if it follows from the assessment already made. If duty is paid in excess of the assessment the same can be refunded. Thus, refund of duty is a mechanical process of returning the excess duty paid. The officer sanctioning refund cannot sit in judgment or modify the assessment by the assessing officer. Any modification to the assessment is possible either by an appeal before the Commissioner (Appeals) or by issue of a notice under section 28. It was, therefore, held that no refund can be sanctioned so as to modify the assessment of bill of entry. As the issue is now settled by the Constitution Bench of the Supreme Court in ITC [2019 (9) TMI 802 - SUPREME COURT] that no refund can be sanctioned even in cases of self-assessment without assailed the bill of entry - the refund cannot be sanctioned without assailing the self assessed bills of entry - Appeal allowed.
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