TMI Blog2007 (1) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... The exim policy provisions had prohibited taking of cenvat credit of CVD paid using DEPB credit. In the mean time, in the year 2003, the Tribunal decided in the case of Polyhose India Pvt. Ltd. v. CCE reported in 2003 (152) E.L.T. 361 and vide Final Order No. 1050/2003, dated 5/12/2003 of SZB, Chennai in the case of SPIC Ltd. v. CC that importers paying CVD using DEPB credit could also take cenvat credit of the same. Following the above decisions, the appellants had paid CVD by debit in DEPB book and taken credit for several imports made from July 2003. As the inputs had not suffered CVD, the jurisdictional Central Excise officers initiated proceedings to recover such credit of CVD taken by the assessee. The credit involved in all such imports by the assessee was over Rs. 86.23 lakhs. The assessee approached the CBEC seeking clarification as to their eligibility to cenvat credit in respect of the impugned payments of CVD in view of the Tribunal orders and its re-credit in DEPB book if they paid the CVD already taken, in cash. The Board informed them that the department had not accepted the said orders of the Tribunal and that they may approach the jurisdictional Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. 285 (S.C.) to the effect that once an appealable order had been passed under the statute, unless the aggrieved party had chosen to exercise the statutory right of fling an appeal, it was not open to the party to question the correctness of the order of the adjudicating authority subsequently, by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. Their lordships had observed that if that position was accepted then the provisions for adjudication in the Act and the Rules, would lose their relevance and the entire exercise would be rendered redundant. That would run counter to the scheme of the Act and would introduce uncertainty in the process of levy and collection of Excise duty. In the case of Priya Blue Industries Ltd. v. CC (Preventive) (supra) it was observed _____ "Once an order of assessment is passed the duty would be payable as per that order, unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal that order stands. So long as the order of assessment stands the duty would be payable as per that order of assessment". In the light of the above case law, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the said provision did not cover the appellant's request they were not barred from seeking remedy by amending Bills of Entry. They cited cases where the Apex Court had allowed the assessee's claim for re-assessment of goods under a different heading than the one initially adopted and had ordered consequential refund and, when two alternative benefits were available, the assessee was allowed to pay back the benefit availed under one notification subsequently and claim exemption under the other notification. They cited the case of Raman Boards v. CCE reported in 1988 (36) E.L.T. 615, in support of the argument that an assessee could opt for re-assessment under a particular notification if they had chosen to forgo the benefit of another notification they had opted for assessment initially. The CBEC in their various circulars permitted the exporters to opt for a different export promotion scheme if a claim by the exporter under one scheme had been denied by the DGFT/Ministry of Commerce. In the instant case, they had approached the Commissioner intimating their intention to pay CVD in cash in terms of the provisions in the same notification under which the impugned imports had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that they were not seeking any additional benefit by the said amendment to the Bills of Entry and that the re-assessment of the respective Bills of Entry was effectively revenue neutral. Ld. Counsel submitted that the ratio of Man Industries ( India ) Ltd. v. CC (EP) Murnbai, 2006 (202) E.L.T. 433 (Tri.-Mum.) and IP. Rings Ltd. v. CC (AIR), 2006 (202) E.L.T. 61 (Tri.-Chen.) supported the appellants' prayer. 9. Arguing the case of the revenue, the ld. SDR defended the impugned order citing various case law relied on by the lower appellate authority. 10. We have carefully considered the submissions by both sides and studied the case records. In the instant case, the appellants had started availing cenvat credit of CVD adjusted against DEPB credit on import of inputs since July 2003 following the decision of the Tribunal in Polyhose India Pvt. Ltd. v. CCE reported in 2003 (152) E.L.T. 361 and Final Order No. 1050/2003 dated 5-12-2003 of SZB, Chennai in the case of SPIC Ltd.. v. CCE as their representation made in April 2003 for clarification of the issue had not elicited any response from the jurisdictional Dy. Collector of Central Excise. An appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to duty." As per sub section 17(4), when imported goods or export goods permitted to be assessed on the basis of declaration and documents submitted by the importer/exporter, are found to be not conforming to such declaration/statements on examination or testing of the goods or otherwise as regards any matter relating to the assessment, the goods may be re-assessed to duty without prejudice to any other action which may be taken under the Act. From the above, it is obvious that Section 17 (4) does not provide for the assessee to seek re-assessment of the goods assessed and cleared, for any reason. The finding of the Commissioner (Appeals) in this regard cannot be faulted. 12. The lower appellate authority relied on the ratio of the judgment of the Apex Court in CCE, Kanpur v. Flock (India) Pvt. Ltd., 2000 (120) E.L.T. 285 (S.C.) and in the Priya Blue Industries Ltd. v. CC (Preventive), 2004 (172) E.L.T. 145 (S.C.) and decided that the assessment already made could not be disturbed. In the CCE, Kanpur v. Flock (India) Pvt. Ltd. (supra), the Apex Court had decided that once the order of assessment had been passed, the duty would be payable as per that order. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments. We cannot take a view, which would make Section 149 redundant. Therefore, we find that the appellant's prayer for amending the Bills of Entry covered by the impugned order has to be allowed. We also find that this Tribunal had recorded the following findings on the provisions contained in Section 149 in I.P . Rings Ltd. v. CC(AIR), 2006 (202) E.L.T. 61 (Tri.-Chen.) "Amendment of Bill of Entry is permissible on the basis of documentary evidence which was in existence at the time when the goods were cleared. In the present case when the goods were cleared. Customs Notification 21/2002 (unamended) was in existence. As its amendment through corrigendum was retrospective in effect, the amended Notification should be deemed to have 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 authorized 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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