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2025 (5) TMI 1046 - AT - CustomsSeeking reassessment of the Bills of Entry - claim for the benefit of concessional rate of duty 1% CVD under Notification No.12/2012-CE - principles of natural justice - refund of excess duty paid on an assessed Bill of Entry - HELD THAT - The Hon ble Supreme Court in ITC Ltd. s case 2019 (9) TMI 802 - SUPREME COURT (LB) has laid down the principle for claiming refund of excess duty paid on an assessed Bill of Entry. To claim the refund first the assessee has to get the assessment /self-assessment modified in accordance with law which includes filing of appeal under Section 128 of the Customs Act 1962. Therefore the appellant was justified in requesting reassessment of the self-assessed Bills of Entry to the adjudicating authority. On rejection of their request the appellant filed appeals before the learned Commissioner(Appeals) under the provisions of Section 128 of the Customs Act 1962. Therefore the impugned de novo order is incorrect in rejecting the reassessment as requested by the appellant claiming concessional rate of 1% CVD in the light of the SRF Ltd. s judgment. We also find that this Tribunal in the appellant s own case has allowed the benefit of the Notification after setting aside the orders of rejection for reassessment of the Bills of Entry. Also we find that refunds have been sanctioned by various Customs Commissionerates after allowing reassessment of the Bills of Entry filed earlier with. Thus the rejection of the reassessment claiming concessional rate of duty is set aside and the matters are remanded to the adjudicating authority to reassess the Bills of Entry allowing the benefit under Sl.No.263A(ii) of Notification No.12/2012-CE dated 17.03.2012 as amended. In the result appeals are allowed by way of remand to the adjudicating authority.
The core legal questions considered by the Tribunal in the present appeals are:
1. Whether the appellant-importer is entitled to reassessment of the 114 Bills of Entry for imported mobile phones to claim the concessional rate of 1% CVD under Sl.No.263A(ii) of Notification No.12/2012-CE dated 17.03.2012 as amended, in light of the Hon'ble Supreme Court judgment in SRF Ltd. (supra). 2. Whether the adjudicating authority and the Commissioner (Appeals) were justified in rejecting the appellant's request for reassessment of the Bills of Entry and confirming the levy of CVD at 6% under Sl.No.263A(i) of the said Notification. 3. The procedural and legal correctness of the rejection of reassessment in view of the provisions of Section 17(4) and Section 17(5) of the Customs Act, 1962, and the applicability of the principles laid down by the Supreme Court in ITC Ltd. (supra) regarding modification of assessment/self-assessment for claiming refund. Issue-wise Detailed Analysis Issue 1: Entitlement to concessional rate of 1% CVD under Notification No.12/2012-CE in light of SRF Ltd. judgment The relevant legal framework includes Notification No.12/2012-CE dated 17.03.2012, particularly Sl.No.263A(i) prescribing 6% CVD on mobile phones and Sl.No.263A(ii) prescribing concessional 1% CVD subject to fulfillment of Condition 16. Condition 16 requires that no CENVAT credit under Rule 3 or 13 of the CENVAT Credit Rules, 2004, has been taken in respect of inputs or capital goods used in manufacture of the goods. The Supreme Court in SRF Ltd. clarified that importers are deemed to have complied with Condition 16 where no credit has been availed, thereby entitling them to the concessional rate of 1% CVD. The appellant relied on this judgment to claim reassessment of the Bills of Entry to avail the concessional rate. The Tribunal noted that the appellant had initially self-assessed and paid 6% CVD but subsequently sought reassessment based on the SRF Ltd. judgment. The appellant's claim was consistent with the legal position established by the Supreme Court and supported by various Tribunal orders in similar cases involving other importers, such as Sony India Private Limited, where reassessment and refund were allowed. The Tribunal found merit in the appellant's contention that they were entitled to the concessional rate of 1% CVD under Sl.No.263A(ii) and that the judgment in SRF Ltd. was squarely applicable. Issue 2: Validity of rejection of reassessment by the adjudicating authority and Commissioner (Appeals) The adjudicating authority rejected reassessment on the ground that the importer had initially opted for the higher 6% CVD rate and that the subsequent claim for 1% was an afterthought. The Commissioner (Appeals) upheld this view without independently examining the applicability of the Supreme Court judgment, effectively confirming the rejection mechanically. The appellant challenged this approach, submitting that the Commissioner (Appeals) had failed to comply with the remand order directing a fresh speaking order considering the Supreme Court judgment and principles of natural justice. The Tribunal observed that the rejection of reassessment was legally unsustainable. The Supreme Court in ITC Ltd. held that refund claims require modification of the original assessment or self-assessment order through appropriate proceedings, such as appeal under Section 128 of the Customs Act. The appellant had followed this procedure by filing appeals and seeking reassessment. The Tribunal emphasized that the adjudicating authority was bound to consider the Supreme Court's ruling and could not dismiss the reassessment request on the ground of afterthought without proper adjudication. The Commissioner (Appeals) also erred in confirming the rejection without a reasoned order. Issue 3: Procedural correctness of reassessment and applicability of Sections 17(4), 17(5), and Section 128 of the Customs Act The Revenue contended that reassessment under Section 17(4) of the Customs Act is permissible only if the self-assessment was incorrect. If the self-assessment was correct, reassessment cannot be ordered. The appellant's request for reassessment was thus rejected on procedural grounds. The Tribunal analyzed the interplay of Sections 17(4), 17(5), and 128 of the Customs Act. Section 17(4) allows reassessment if self-assessment is found incorrect. Section 17(5) mandates a speaking order when reassessment is made. Section 128 provides for appeals against orders of assessment or self-assessment. The Tribunal held that the appellant's filing of appeals under Section 128 was appropriate to seek modification of the self-assessment. The Commissioner (Appeals) had remanded the matter for reassessment in terms of Section 17(5), following natural justice and Supreme Court directions. The Tribunal found that the rejection of reassessment on procedural grounds was incorrect because the appellant had not been afforded the opportunity to modify the assessment in light of the Supreme Court ruling. The Tribunal also noted that other Commissionerates had allowed reassessment and refunds in similar circumstances. Treatment of competing arguments The appellant's argument centered on entitlement to concessional duty and procedural correctness of reassessment following Supreme Court precedents. The Revenue's argument focused on procedural limitations on reassessment and the finality of self-assessment once accepted. The Tribunal favored the appellant's position, emphasizing the binding nature of Supreme Court decisions, the statutory right to appeal and seek reassessment, and the necessity of reasoned orders in compliance with natural justice. The Tribunal rejected the Revenue's narrow procedural interpretation that would deny reassessment despite established legal entitlement. Significant Holdings The Tribunal held: "The Hon'ble Supreme Court in ITC Ltd.'s case has laid down the principle for claiming refund of excess duty paid on an assessed Bill of Entry. To claim the refund, first the assessee has to get the assessment /self-assessment modified in accordance with law which includes filing of appeal under Section 128 of the Customs Act, 1962. Therefore, the appellant was justified in requesting reassessment of the self-assessed Bills of Entry to the adjudicating authority." "The impugned de novo order is incorrect in rejecting the reassessment as requested by the appellant claiming concessional rate of 1% CVD in the light of the SRF Ltd.'s judgment." "The rejection of the reassessment claiming concessional rate of duty is set aside and the matters are remanded to the adjudicating authority to reassess the Bills of Entry allowing the benefit under Sl.No.263A(ii) of Notification No.12/2012-CE dated 17.03.2012 as amended." Core principles established include:
Final determinations:
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