TMI Blog2006 (6) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... been in existence at the time of clearance of the goods and, consequently, in terms of Section 149, the subject Bills of Entry were open to be amended. It appears from the provisions of Section 149 that such amendment shall be made by the importer as authorised by the proper officer. Thus the importer is expected to apply to the proper officer for permission to amend the Bills of Entry. Such amendment of the Bills of Entry should precede re-assessment under Section 17 of the Act. Therefore, it would appear that the initiative for re-assessment should come from the assessee. It is still open to the assessee to take this initiative, there being no period of limitation prescribed for re-assessment under the Act. Hence, for the ends of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of the fact that the assessments of the Bills of Entry had not been challenged. In the present appeal, it is submitted that, as the lower appellate authority has rejected the refund claims on a ground extraneous to the order-in-original, the impugned order cannot be sustained in law. It is submitted by the learned Counsel for the appellants that the view taken by the Commissioner (Appeals) is not applicable to this case inasmuch as there was no lis between the appellants and the department. In this connection, reliance is placed on the Tribunal s Larger Bench decision in the case of Faxtel System (India) Pvt. Ltd. v. CC, Cochin reported in 2004 (169) E.L.T. 265 (Tri. - LB) wherein the Bench applied to the case, the ratio of the the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of sub-section (4) of Section 17 of the Customs Act. It appears from the tenor of arguments made by the learned Counsel that, on the facts of this case, re-assessment should have been done by the proper officer suo motu. Section 17 which has been debated at length in this case reads as under : "SECTION 17. Assessment of duty. - (1) After an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 the imported goods or the export goods, as the case may be, or such part thereof as may be necessary may, without undue delay, be examined and tested by the proper officer. (2) After such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was 30% instead of 40%. Therefore, the goods should have been re-assessed to duty in terms of the provisions contained in the second half of the above sub-section (underlined). The question now is whether such re-assessment should have been initiated by the proper officer of Customs or claimed by the assessee. In order to answer this question, it may be relevant to consider the provisions of Section 149 of the Customs Act inasmuch as any re-assessment in this case would follow amendment of the rate of BCD (from 40% to 30%) entered in the Bills of Entry. Section 149 reads as under. SECTION 149. Amendment of documents. - Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am of the considered view that it is still open to the assessee to take this initiative, there being no period of limitation prescribed for re-assessment under the Act. Hence, for the ends of justice, I set aside the impugned order and direct the original authority to reassess the Bills of Entry under Section 17(4) of the Act after allowing the assessee to amend the Bills of Entry under Section 149. The authority shall thereafter proceed to entertain the refund claims already filed by the party. Of course, the assessee, in that event, will have to discharge is burden of proof against the bar of unjust enrichment. Needless to say that they should be given a reasonable opportunity to adduce evidence against unjust enrichment as also to be pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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