TMI Blog2018 (12) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... imported goods as contained in Section 17 of the Act. There is no question of challenging the self assessed bill of entries. The Department has cited as many as 10 defects in the refund application. - Once the Petitioner replied to such communication in detail, in subsequent communications the authority confined his objection only to the question of the assessment not having been revised or set aside. Thus, all other objections of not supplying documents or details were waived or can be seen to have been satisfied through correspondence. Section 149 of the Act provides that a proper officer may at his discretion authorize a document after it is presented in the Custom House to be amended. Proviso to Section 149 clearly lays down that no amendment of bill of entry shall be authorized to be amended after imported goods have been cleared for home consumption. Thus, the opportunity to have the bill of entry amended in terms of Section 149 of the Act, was simply not available to the Petitioner. Unjust enrichment - Held that:- When there is no clarity in the order itself, whether the Competent Authority has accepted the Petitioner's evidence as to establishing the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to claim the benefit of exemption from payment of CVD in terms of said notification. 4. The case of the Petitioner is that the duty paid by the Petitioner at the higher rate on its import was therefore refundable. The Petitioner would further point out that after the said judgment of the Supreme Court in case of M/s SRF Limited (supra) in any case the Petitioner was entitled to clear the imported goods by paying reduced CVD in terms of the said notification dated 17th March, 2012. The process of filing bill of entry having been made automatic and online, unless and until the Department changed its electronic system to accept the bill of entry disclosing CVD at the concessional rate, no importer could file the bill of entry without declaring the full rate of CVD. The Petitioner accordingly wrote letters dated 22nd April, 2015, 24th April, 2015, 30th April, 2015 and 4th May, 2015 requesting the Department to make necessary changes in its electronic system so that the portal would accept the bill of entry taking into account the concessional rate of duty as per the said notification. For example in the letter dated 22nd April, 2015 after referring to the judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no requirement under the Customs Act, 1962 to get the BOEs re assessed for the purpose of claiming refund of excess additional duty of customs ('CVD') paid by the Company. That the Company has filed the refund claims under Section 27 of the Customs Act, 1962. We have reproduced the relevant extracts of Section 27 of Custom Act for your ready reference: Section 27(1A): The application under sub section (1) shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty or interest, in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty or interest, has not been passed on by him to any other person. Section 27(2) .... Provided that the amount of duty and interest, if any, paid on such duty; as determined by the Assistant Commissioner of Customs or Deputy Commissioner of Customs under the foregoing provisions of this subsection shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to (a) the duty and interest, if any, paid on such duty paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the Priya Blue case as there was no order of assessment reviewed by a higher appellate authority. The CESTAT relied on the Aman Medical case to allow the appeals by way of remand to the original adjudicating authority for de novo consideration of the appellant's refunds with direction to complete the same within 3 months from the date of receipt of the order after giving appellants an opportunity of being heard. In the case of Mecon Ltd. Vs. Commissioner of Customs, Calcutta 2003(153) E.LT. 574 (Tri.Kolkata) the Hon'ble Tribunal has held that the filing of refund claim amounts to filing a request for re assessment of bill of entry and same is required to be made and as per the provisions of Section 27 of Customs Act, 1962. Similarly, in the case of Hindustan Petroleum Corpn. Ltd. Vs. Commissioner of Cus., Chennai 2003 (156) E.L.T. 425 (Tri Chennai) it was held that when a refund claim is filed by the assessee by not accepting the classification and rate of duty, etc., mentioned in the bill of entry, such refund claim is entertainable because the assessment also gets challenged by filing such refund claim. Further, in the case of Ruchi Soya Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Department and pointed out that the Petitioner had also filed refund claims before the Assessment Commissioner, New Delhi under similar circumstances. Such refund claims were rejected on the ground that the bill of entries having been assessed unless the same are reviewed or set aside in appeal, refund claims would not be maintainable. The petitioner pointed out that against such decision of the Departmental authority the Petitioner had approached Delhi High Court by filing a writ petition. Delhi High Court had allowed the petition holding that under Section 27 of the Act as it now stands, it is not open to an Authority to refuse to consider the application for refund only because no appeal has been filed against the assessment order. 13. The Competent Authority however was not satisfied. By the impugned order dated 30th March, 2016, he rejected the Petitioner's refund claim. Relevant portion of his order reads as under : 6. In view of the facts above and on scrutiny of refund claim/documents submitted by the importer it appears that the refund application submitted by the importer is not maintainable for lack of documents/procedure conditions/deficiencies as me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporter has not approached concerned Appraising Group with a request of reassessment of Bs/E in terms of Notification No. 12/2012 Ex.(Sr.No.263A), if at all they have the right to do so on the basis of original ruling. 14. I find that following principle of nature justice, the importer was given ample opportunity to come-up for Personal Hearing or produce the required documents in support of their refund claim. The importer was requested to produce the required particulars or avail of the personal hearing vide this office letters dated 18.09.2015, 04.12.2015 and 23.01.2016 10/02/2016 but the imported failed to appear or to produce the required documents in totality in support of their refund claim. The importer was well informed that in case of non-submission of the complete particulars or appear for personal hearing, their case will be decided ex parte on the basis of records available at this office. I find that the importer did not challenge the assessment order within stipulated time period as per provisions of Section 17(5) of the Customs Act, 1962, Section 17 Assessment of duty:(5) Where any re assessment done under sub section (4) is contrary to the self assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contained in the said Act to contend that by virtue of certain amendments in the statute, the stand of the Department insisting on reassessment of the bill of entries before granting refund is wholly invalid. He submitted that this is precisely what the Delhi High Court has held in case of Micromax Informatics Limited 335 ELT page 446. 16. On the other had, counsel for the Department opposed the petition contending firstly that the petition is premature. She would interpret the operative portion of the order as to giving an opportunity to the Petitioner to re present the refund applications after having the bill of entries reassessed. The counsel further submitted that the authority has passed a perfectly valid order. The Petitioner having filed the bill of entries, cannot seek refund of a tax voluntarily paid. She further submitted that there were several defects and deficiencies in the refund applications. The Petitioner without satisfying all such defects, in any case cannot claim refund. 17. Basic facts are not seriously in dispute which may be summarized thus. The Petitioner imported several consignments of mobile handsets during the period between July, 2014 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest as long as such duty or interest was paid or borne by such person. The conditionality of such payment having been made pursuant to an order of assessment does not exist. Secondly, once an application is made under Section 27(1) of the Act, it is incumbent on the authority concerned to make an order under Section 27(2) determining if any duty or interest as claimed is refundable to the applicant. The proviso to Section 27(2) of the Act sets out the instances where refund should be paid to the claimant instead of being credited to the Consumer Welfare Fund. The only relevance as far as payment of duty under protest is concerned is indicated in the second proviso to sub section (1) of Section 27 of the Act which states that the limitation of one year shall not apply in such event. In other words, whether or not the duty is paid under protest once an application for refund is made in the requisite manner and form as prescribed, it is incumbent on the authority to deal with such an application. Where there is an assessment order, the authority will take it into account in deciding the application for refund. If such assessment order has been reviewed or modified in appeal such fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concurring with the view of the Delhi and Madras High Courts in case of Micromax Informatics Limited (supra). Prior to the amendment brought into the statute with effect from 8th April, 2011 by virtue of Finance Act, 2011, Section 17 of the Act provided for filing of a bill of entry by an importer and examination and assessment thereof by the Competent Authority. Relevant portion of Section 17 prior to its amendment 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 provided in section 85, be assessed. (5) Where any assessment done under sub section (2) is contrary to the claim of the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification therefore under this Act, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the importer, exporter or any other person to produce any contract, broker's note, insurance policy, catalogue or other document, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which is in his power to produce or furnish , and to furnish any information required for such ascertainment which is in his power to produce or furnish, and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4) Where it is found on verification, examination or testing of the goods or otherwise that the self assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re assess the duty leviable on such goods. (5) Where any re assessment done under subsection (4) is contrary to the self assessment done by the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification issued therefore under this Act and in cases other than those where the importer or exporter, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursuant to an order of assessment or borne by him, within the time prescribed alongwith prescribed documents to establish that the amount of duty and interest in relation to which the refund is claimed, has not been passed on to any other person. 25. In contrast to these unamended provisions, post amendment sub section (1) of Section 17 envisages an importer entering any imported goods to self assessed duty if any leviable on such goods. Sub section (2) of Section 17 authorizes the proper officer to verify such self assessment. Sub section (4) of Section 17 provides that wherever it is found on verification, examination or testing of goods or otherwise that the self assessment is not done correctly, the proper officer may without prejudice to other action which he may undertake, reassess the duty leviable on such goods. Sub section (5) of Section 17 provides that where any reassessment done under sub section (4) is contrary to the self assessment, the proper officer shall pass a speaking order on reassessment within 15 days from the date of reassessment. Correspondingly, sub section (1) of Section 27 in the amended form now provides that any person claiming refund of any duty or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the concerned authority had not examined other aspects of the refund claim. 30. In our opinion, both the contentions are not valid. Firstly, in the impugned order the Competent Authority has rejected the refund claims on the ground that, the Petitioner had not challenged the assessment orders. In this context, he has relied on the decision of the Supreme Court in case of Priya Blue (supra). In paragraph No.12 of the order he has recorded that the refund claim is not maintainable in terms of reasons discussed in paragraph No.6(A) (B) and (C) above and these paragraph No.6(A)(B) and (C) are confined to the single objection of the Department namely that without having assessment orders set aside, no refund claim would be maintainable. The impugned order thus effectively dismisses the Petitioner's refund claim finally. The Petitioner has contended before us and which contention we have accepted that there is no question of challenging the self assessed bill of entries. Equally, her contention that other issues are not examined is also not correct. As noted in the first deficiency memo, the Department has cited as many as 10 defects in the refund application. Once the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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