TMI Blog2019 (2) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... e bill of entry from the system and assess the bill of entry. This is done often. However, if the assessee has missed the opportunity to get the assessment corrected because the goods have already cleared there is no scope for the officers to assess the bills of entry. In such a case, the question is whether it is open for the importer to claim refund of duty under Section 27 of the Customs Act - A plain reading of the section would show that the importer or any other person can claim refund of duty under Section 27. This refund application has to be considered by the officers and the decision taken thereon - matter on remand. The appeal is disposed of by expunging the order to correct the mistake in the bills of entry under Section 154 of the Customs Act but upholding the sanction of refund. - Appeal No. C/1151/2011 - A/30140/2019 - Dated:- 29-1-2019 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) And Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Shri P. S. Reddy, Deputy Commissioner (AR) for the Revenue. Smt A.S.K Swetha, Advocate for the Assessee/Respondent. ORDER Per: P. Venkata Subba Rao This appeal is filed by the Revenue against Order-in-Appeal No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 17 of the Customs Act. The importer would make a declaration by filling the necessary information in the Customs EDI system and the system would allow him to pay duty and clear the goods. Thus, for the period after introduction of such features in the EDI system and until 08.04.2011 (when Section 17 was amended introducing self assessment), the officers had, per force, to abdicate their responsibility of assessment under Section 17 of the Custom Act. Thus, during this period, in such cases, there was no assessment either by the importer or by the officers. The present case pertains to such period. In this case the respondent had submitted the bill of entry on time describing the nature of the goods the value, the classification as well as the exemption notification and accordingly paid duty. The officer did not assess the goods in question, hence there was no order of the assessment by the officer nor self assessment. Thus, in this case what was available was only a declaration by the appellant based on which they paid duty. 3. Thereafter, the appellant requested the officers to correct the errors in their bills of entry under Section 154 in the Customs Act, which re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves a substantive review of the assessment made earlier, Section 27 of the Customs Act, 1962 requires that such review should be undertaken by the appropriate higher authority. So wherever correction of errors amounts to review of assessment order on bill of entry, the provisions of Section 154 are not applicable. Therefore, they prayed to quash the impugned Order-in-Appeal passed by the Commissioner (Appeals). 8. Learned Counsel for the respondent reiterates the findings of the First Appellate Authority and submits that in a similar case in the case of Aman Medical Products Limited Vs. Commissioner of Customs, reported in [ 2009 (9) TMI 41-Delhi High Court ] wherein, it was held that the ratio of Priya Blue Industries and Flock (India) Pvt. Ltd., do not apply where there is no assessment order. They are covered by this case and accordingly the appeal may be rejected. He, fairly, submits that this judgment of the Hon ble High Court of Delhi has been challenged by the Revenue before the Supreme Court as reported at [2010 (256) ELT A57 (S.C)] but it has not been stayed. 9. We have considered the arguments on both sides and perused the records. It would be profitable to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other person can claim refund of duty under Section 27. This refund application has to be considered by the officers and the decision taken thereon. 11. The law laid down by the Hon ble Supreme Court in the case of Priya Blue Industries (supra) and Flock (India) Pvt. Ltd., (supra) is that this path of refund under Section 27 cannot be used as a way to subvert the order of the assessment made by an officer. If the assessment has been made by an officer and the importer is not satisfied with it the right quote of challenge his assessment order. The relevant portions of the judgment in the case of Priya Blue Industries Ltd., which is as follows: 4. We have heard parties at great length. 5. Under Section 27 of the Customs Act, 1962 a claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who had borne the duty. It has been for refund can be made without challenging the Assessment in an Appeal. It is submitted that if the assessment is not correct, a party could file a claim for refund and the correctness of the Assessment Order can be examined whilst considering the claim for refund. It was submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he whole or any part of the duty paid by the applicant should be refunded to him, he may make an order accordingly. (3) Where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to an person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. (4) Save as otherwise provided by or under these rules no claim for refund of any duty shall be entertained. Explanation : For the purposes of this rule, refund includes rebate referred to in Rules 12 and 12A. 7. Section 35 of the Act provides regarding appeals to Collector (Appeals). In sub-section (1) thereof it is laid down that any person aggrieved by any decision or order under the Act by a Central Excise officer lower in rank than a Collector of Central Excise may appeal to the Collector (Appeals) within 3 months from the date of communication to him of such decision or order. In the proviso to sub-section (1) the power is vested in Collector (Appeals) to extend the period by further three months if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot, be countenanced. The view taken by us also gain support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer, may refund, the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962 empowers Commissioner (Appeals) to hear appeals only against the decisions or orders passed by an officer of customs lower in rank than the Commissioner of Customs or Principal Commissioner of Customs as a case may be. There is no provision under this section or anywhere else for the importer or exporter to file an appeal against his self assessment or where there is no assessment. Such self assessment cannot be challenged before the Commissioner (Appeals). The officers also cannot correct any mistakes in the declarations in the Bill of Entry made by the importer under Section 154 of the Customs Act because they can only correct mistakes made by them or their predecessors. However, in such cases, they can claim refund under Section 27, since there is no assessment and the limitation imposed by the Hon ble Apex Court in the cases of Priya Blue Industries (supra) and Flock (India) Pvt. Ltd., (supra) does not apply. This position was clarified by the Hon ble High Court of Delhi in the case of Aman Medical Products (supra). In view of the above, we find that the first appellate authority was wrong in ordering correction of mistake under Section 154 of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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