TMI Blog2019 (9) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 27 without modifying the assessment order would amount to the refund sanctioning officer modifying order of assessment of the assessing officer which is not permissible. An order of assessment of the assessing officer can only be set aside or modified by the superior judicial / quasi-judicial authority. Therefore, the order of assessment needs to be challenged before a refund claim can be filed. The law has been brought in consonance with the Customs EDI system and the responsibility for assessment has been shifted from the officer to the importer themselves. The self assessment by the assessee is either accepted or in some cases the officers can reassess the duty. There is no assessment by the officer but there can be re-assessment in some cases - In most cases, the declaration by the appellant is taken as self assessment and duty is paid and goods are cleared accordingly. In such cases, there is no assessment order by any officer to be challenged. Correspondingly, Section 27 of the Customs Act was also amended and the words in pursuance of an order of assessment have been deleted. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 30274 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Learned Chartered Accountant representing the appellant submits that the judgment of the Hon ble Apex Court in the case of Priya Blue Industries (supra) was issued at a time when the assessment of duty was to be done by an officer as per Section 17 of the Customs Act, 1962. Correspondingly, the claim for refund under Section 27 could be made by any person claiming the refund of duty and interest, if any, paid on such duty, paid by him in pursuance of an order of assessment or borne by him can make an application. He submits that Section 17 of the Customs Act which dealt with assessment as well as Section 27 which dealt with refund were amended vide Finance Act, 2011. After this amendment Section 17 of the Customs Act provided for self assessment of duty by the importer and its verification, if felt necessary, by the proper officer. Assessment by the officer has been done away with and he could only verify and reassess the duty which has already assessed by the appellant. Correspondingly, Section 27 of the Act was modified enabling the person to claim refund of any duty or interest paid by him or borne by him. The requirement of claiming refund of duty paid In pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 sub-section (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 the case may be, confirms his acceptance of the said re- assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. (6) Where re-assessment has not been done or a speaking order has not been passed on re- assessment, the proper officer may audit the assessment of duty of the imported goods or export goods at his office or at the premises of the importer or exporter, as may be expedient, in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 27 an importer can claim refund without challenging his own self assessment of the Bill of Entry. In fact, there is no scheme to appeal against ones own self assessment. 5. Learned DR reiterates the findings of the impugned order and submits that the case of Aman Medical Products (supra) has not reached finality because the judgment of the Hon ble High Court of Delhi was challenged by the Revenue before the Supreme Court through an SLP and the same has been admitted [2010 (256) ELT A57 (SC)]. Although the judgment has not been set aside/stayed, the matter has not yet reached the finality and question of law remains open before the Hon ble Apex Court. Accordingly, the Lower First Appellate Authority has followed the judgment of the Hon ble Apex Court in the case of Priya Blue Industries (supra) and allowed the appeal of the Revenue. 6. I have considered the arguments on both sides and perused the records. As far as this issue is concerned, there are three periods in the of the Customs Law and the procedures. Initially, as per Section 17 of the Customs Act, the officer was required to assess the duties of customs based on the declaration made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Subsequently, the law has been brought in consonance with the Customs EDI system and the responsibility for assessment has been shifted from the officer to the importer themselves. The self assessment by the assessee is either accepted or in some cases the officers can reassess the duty. There is no assessment by the officer but there can be re-assessment in some cases. In most cases, the declaration by the appellant is taken as self assessment and duty is paid and goods are cleared accordingly. In such cases, there is no assessment order by any officer to be challenged. Correspondingly, Section 27 of the Customs Act was also amended and the words in pursuance of an order of assessment have been deleted. Therefore the ratio of the judgment of the Hon ble Apex Court in the case of Priya Blue (supra) does not apply for the period post 2011. This issue has been settled by the Hon ble High Court of Delhi in the case of Micro Max Informatics Ltd., [2016 (375) ELT 446 Del] and Hon ble High Court of Madras in the case of Micro Max Informatics Ltd., [2017 (358) ELT 38 Mad]. The present case also pertaining to post 2011 and the ratio of these judgments applies. Even if the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
