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2015 (11) TMI 84

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..... MBAY HIGH COURT] followed - Decided in favour of Assessee. - C/392/2010 - Final Order No. 40760/2015 - Dated:- 29-5-2015 - R. Periasami, Member (T) And P. K. Choudhary, Member (J) For the Petitioner : Mr Hari Radhakrishnan, Adv For the Respondent : Mrs Cecilia Parthasarathy, AC (AR) ORDER Per P K Choudhary This is an appeal filed by Steel Authority of India Ltd. (hereinafter referred to as the Appellants ) against the Order-in-Appeal C. Cus. No. 577/2010 dated 28.9.2010 passed by the learned Commissioner of Customs (Appeals), Chennai. 2. Few facts which are necessary for understanding the controversy are that the appellants imported Ferro Molybdenum and filed two Bills of Entry dated 31.10.2008 and 19.11.2008. T .....

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..... llenging the order of assessment. The order of assessment can be modified either by filing an appeal or by causing re-assessment of the goods after amending the bill of entry. The learned counsel relied on the following decisions: - (a) Hero Cycles Ltd. Vs. Union of India -2009 (240) ELT 490 (Bom.) (b) Commissioner of Customs, Mumbai Vs. Global Vectra Heicorp -2013 (297) ELT 250 (c) Bansal Alloys Metals Pvt. Ltd. Vs. Commissioner of Customs, Amritsar -2009 (240) ELT 483 (P H) (d) Share Medical Care Vs. Union of India -2007 (209) ELT 321 (SC) 5. The learned AR appearing for the Revenue while supporting the orders passed by the lower authorities submits that Section 149 will not be attracted in view of the assessment order ha .....

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..... , the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be. 8. From the above, it can be seen that as far as Section 149 is concerned, amendment is to be allowed on the basis of documentary evidence which was in existence at the time when the goods were cleared, deposited or exported. The only restriction is Sections 30 and 41 of Customs Act, 1962 which relates to export and import manifest which are not allowed to be amended of when there is a fraudulent intention. In the case of amended document under Section 149, the ame .....

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..... ercise our extraordinary jurisdiction, we will have to issue directions to the respondents to amend the original order of assessment. In so far as the claim for refund is concerned, that would only arise after the order is amended. The relief of refund claimed is not maintainable before the order of assessment is amended or modified as held by the Supreme Court in Priya Blue Industries (supra). The Petitioner no doubt has contended that he has not passed on the duties and as such the question of unjust enrichment would not arise in the matter. That is not for us to answer today. That would only be on an appropriate application being filed for relief after original orders of assessment which have been quoted in our judgment are modified. .....

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