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2023 (3) TMI 25 - AT - CustomsRefund of Customs Duty - Rectification / amendment of Bill of Entry u/s 149 - Computation of Period of limitation - refund claims filed by the respondent were barred by time or not - HELD THAT:- In the present case, the order carrying out an amendment in the Bills of Entry under section 149 of the Customs Act attained finality, as the department did not challenge these orders in appeal. It is only during the course of refund applications that the department took a stand that since the order of the assessment was not assailed by the respondent in appeal under section 128 of the Customs Act, the refund applications could not be allowed. Such a stand could not have been taken by the Department. If the department felt aggrieved by the order seeking an amendment in the Bills of Entry under section 149 of the Customs Act, it was for the department to have assailed the order by filing an appeal under section 128 of the Customs Act. This plea could not have been taken by the department to contest the claim of the respondent while seeking refund filed as a consequence of the reassessment of the Bills of Entry or amendment in the Bills of Entry - The Commissioner (Appeals), therefore, committed no illegality in taking a view that refund has to be granted to the respondent as the order for amendment in the Bills of Entry had attained finality. Whether the refund claims were barred by time? - HELD THAT:- The Commissioner (Appeals) held that if section 149 of the Customs Act relating to amendment in the Bills of Entry is made applicable, the cause of action for claiming refund would arise only after the amendment is made and so the limitation for claiming refund would start from that date. In coming to this conclusion, the Commissioner (Appeals) placed reliance upon the decision of the Bombay High Court in KESHARI STEELS VERSUS COLLECTOR OF CUSTOMS, BOMBAY [1996 (9) TMI 154 - HIGH COURT OF JUDICATURE AT BOMBAY], wherein what was examined was whether the rejection of the refund claim on the ground of limitation contemplated under section 27 of the Customs Act was justified. It was held by the Bombay High Court that the refund was within time from the date the rectification was carried out and limitation was not to be counted from the date of assessment. This decision has been affirmed by the Supreme Court in COLLECTOR VERSUS KESHARI STEELS [1997 (12) TMI 643 - SC ORDER]. It would be seen that the Bombay High Court held that the question of refund would arise only when the assessment order is rectified - the Commissioner (Appeals), therefore, committed no illegality in holding that the refund claims were not barred by time. Appeal dismissed.
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