TMI Blog2019 (9) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... der of assessment passed by the Assessing Officer. Thus, the endorsement made on the bill of entry is an order of assessment. It cannot be said that there is no order of assessment passed in such a case. When there is no lis, speaking order is not required to be passed in across the counter affair''. Procedure of assessment of duty as prevailed before the amendment of the Act prior to the amendment made in section 17(1) by the Finance Act of 2011 - HELD THAT:- No doubt about it that the expression which was earlier used in Section 27(1)(i) that in pursuance of an order of assessment has been deleted from the amended provision of Section 27 due to introduction of provision as to self-assessment. However, as self-assessment is nonetheless an order of assessment, no difference is made by deletion of aforesaid expression as no separate reasoned assessment order is required to be passed in the case of self-assessment. It is apparent from provisions of refund that it is more or less in the nature of execution proceedings. It is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issed. - CIVIL APPEAL NOS. 293-294 OF 2009 - - - Dated:- 18-9-2019 - CIVIL APPEAL NO.2960 OF 2010 CIVIL APPEAL NO.5878 OF 2011 CIVIL APPEAL NO.310 OF 2011 CIVIL APPEAL NOS.4432-4434 OF 2011 CIVIL APPEAL NO.6407 OF 2011 CIVIL APPEAL NOS.15751582 OF 2012 CIVIL APPEAL NO.1585 OF 2012 CIVIL APPEAL NO.1571 OF 2012 CIVIL APPEAL NO.5490 OF 2011 CIVIL APPEAL NO.5491 OF 2011 CIVIL APPEAL NO.5489 OF 2011 CIVIL APPEAL NO.6054 OF 2011 CIVIL APPEAL NO.7710 OF 2014 CIVIL APPEAL NO.5960 OF 2016 CIVIL APPEAL NO.96 OF 2016 CIVIL APPEAL NOS. 738486 OF 2019 (@ SPECIAL LEAVE PETITION (C) NOS.1611416116 OF 2017) CIVIL APPEAL NO. 7387 OF 2019 (@ SPECIAL LEAVE PETITION (C) NO.25193 OF 2016) CIVIL APPEAL NO. 7388 OF 2019 (@ SPECIAL LEAVE PETITION (C) NO.26530 OF 2016) CIVIL APPEAL NO. 20852 OF 2017 CIVIL APPEAL NO. 7389 OF 2019 (@ SPECIAL LEAVE PETITION (C) NO.4294 OF 2017) CIVIL APPEAL NO. 7391 OF 2019 (@ SPECIAL LEAVE PETITION (C) NO.6269 OF 2017) CIVIL APPEAL NO. 7392 OF 2019 (@ SPECIAL LEAVE PETITION (C) NO.15175 OF 2017) CIVIL APPEAL NO.18765 OF 2017 CIVIL APPEAL NO. 7393 OF 2019 (@ SPECIAL LEAVE PETITION (C) NO.31561 OF 2017) CIVIL APPEAL NOS. 739496 OF 2019 (@ SPECIAL LEAVE PETITION (C) NO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also been observed that 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. It has been opined that under Section 27 of the Act as amended, 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, if there is one. 6. The High court has further opined that although under Section 27(2) of the Act, the word assessment includes a self-assessment, the clearance of the goods upon filing of the bills of entry and payment of duty is not per se an assessment order in the context of Section 27(1) (i) as it stood prior to 8.4.2011, particularly, if such duty has not been paid under protest. In any event, after 8.4.2011, as long as customs duty or interest has been borne by a person, a claim for refund made by such person under Section 27(1) of the Act will have to be entertained and an order passed thereon by the authority concerned, even where an order of assessment may not have been reviewed or modified in appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the period from July 2001 to March 2002. The said refund claim was filed under section 11(b) of the Central Excise Act, 1944 (for short, referred to as the 1944 Act ) and within the statutory period of limitation. 11. A show cause notice was issued as to why the said claim be not rejected to which a reply was filed. The assessment committee rejected the said claim. The Commissioner of Appeals dismissed the appeal. Thereafter, successive appeal was preferred before the Tribunal. The Tribunal has rejected the refund claim of the appellant. Hence, the appeal has been preferred under section 35(b) of the 1944 Act. 12. In the case of Union of India Ors. v. Micromax Informatics Ltd., the respondents (i.e. Micromax Informatics Ltd.) had imported mobile handsets including cellular phones during the period 30.07.2014 to 29.8.2014. At the time of customs clearance, they paid Additional Customs Duty (CVD) under Section 3(1) of the Customs Tariff Act, 1975 at the rate of 6 %. In all, the imports bills of entry were selfassessed by the respondents in terms of the Self-assessment Scheme under section 17 of the Act and were thus finally assessed. This Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. The respondent preferred an appeal before the Commissioner (Appeals) for grant of refund of excess duty paid by them. The appeal was allowed by the Commissioner of Appeals. The Department filed an appeal before the Tribunal. The Tribunal observed that refund claim cannot be adjudicated on merits. The respondent Aman Medical Products Ltd filed a writ petition before the High Court. The writ petition has been allowed. 14. Shri P. Chidambaram, learned senior counsel has taken us through the definition of the assessment as prevailed under the 1962 Act and the amended definition under the Act, assessment w.e.f. 8.4.2011, Finance Act, 2011, Section 17 and Section 27 as amended by the Finance Act, 2011. It was urged by learned senior counsel that prior to the amendment by the Finance Act, 2011, the scheme of assessment under section 17 of the Customs Act was such that once a bill of entry was filed, examination and testing of the imported goods were done by the proper officer. Thereafter, an order of assessment was passed after the physical examination. Accordingly, section 27 of the Customs Act provided that claim for refund to be made by any person who had (a) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the proper officer and for this purpose, he may examine or test goods or part thereof. 16. It was further urged on behalf of the assessee that amended section 17 and section 27 are to be read together. By amended section 27 it is now provided that an application for refund of duty will be made by any person who has paid the duty or by any person who has borne the duty. Earlier refund could be claimed by the person who has paid the duty. Under the post amendment provision the words in pursuance to the order of assessment have been deleted and a refund claim is maintainable by the assessee in case duty has been paid by him . The legislative intent is clear. Now the order of assessment has been made irrelevant and a reassessment to an order is no longer a prerequisite for maintaining a refund claim. Now under the scheme of self-assessment, there would be no order of assessment by the proper officer. 17. It was further urged on behalf of the assessee that section 27 cannot be rendered otiose or redundant. Section 27 does not contain any stipulation which may suggest that refunds can be filed only after the Bill of Entry has been appealed against. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reliance has been placed on Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd., 2000 (120) ELT 285 (SC). In the instant case, the bills of entry were filed and they were selfassessed. It is an assessment under the Act and in case benefit of notification has not been claimed, in the absence of challenge to assessment of bills of entry by way of filing the appeal, the benefit of notification cannot be claimed. An application for refund is not maintainable in view of the law laid down by this Court in Flock (India) Pvt. Ltd. (supra) and Priya Blue Industries (supra). Once the self-assessment/ assessment attains finality and has not been questioned, it cannot be reopened at any point of time. The refund claim is not an appellate proceeding. The officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The officer considering the refund claim cannot also review an assessment order. Even after the amendment is made in 2011, the conditionality of payment having been made pursuant to an order of assessment continue to exist. As the self-assessment of bills of entry is an order of assessment per se, unless the order of assessment pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act is extracted hereunder: 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. (3) For the purpose of assessing duty under subsection (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker s note, policy of insurance, 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 thereupon the importer, exporter or such other person shall produce such document and furnish such information. (4) Notwithstanding anything contained in this section, imported goods o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sess the duty leviable on such goods. (5) Where any reassessment 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 therefor 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 reassessment in writing, the proper officer shall pass a speaking order on the reassessment, within fifteen days from the date of reassessment of the bill of entry or the shipping bill, as the case may be. (6) Where reassessment has not been done or a speaking order has not been passed on reassessment, 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 such manner as may be prescribed. Explanation.-For the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation of one year or six months, as the case may be, shall be computed from the date of issue of such order. [Provided also that where the duty becomes refundable as a consequence of judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year or six months, as the case may be, shall be computed from the date of such judgment, decree, order or direction. Explanation- I. For the purposes of this subsection, the date of payment of duty and interest, if any, paid on such duty , in relation to a person, other than the importer, shall be construed as the date of purchase of goods by such person. Explanation II. Where any duty is paid provisionally under section 18, the limitation of one year or six months, as the case may be, shall be computed from the date of adjustment of duty after the final assessment thereof. (emphasis supplied) 27. The provision of Section 27 of the Customs Act as amended by Finance Act, 2011 is extracted hereunder: 27. Claim for refund of duty. (1) Any person claiming refund of any dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re any duty is paid provisionally under section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in case of reassessment, from the date of such reassessment.] (2) If, on receipt of any such application, the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied that the whole or any part of the duty and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: 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 by the importer [or the exporter, as the case may be], if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to subsection (2), including any such notification approved or modified under subsection (4), may be rescinded by the Central Government at any time by notification in the Official Gazette. (emphasis supplied) 28. Section 28 deals with the recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. Section 28(1) is extracted hereunder: 28. Recovery of duties not levied or not paid or shortlevied or shortpaid or erroneously refunded.( 1) Where any duty has not been levied or not paid or has been shortlevied or shortpaid or erroneously refunded, or any interest payable has not been paid, partpaid or erroneously refunded, for any reason other than the reasons of collusion or any wilful misstatement or suppression of facts, (a) the proper officer shall, within two years from the relevant date, serve notice on the person chargeable with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proper officer examines the goods, tests them, assesses the proper duty and permits clearance of goods only after the duty and other charges, if any, are paid. In the scheme of the Act, there is no room for contending that any goods will be allowed to be cleared without assessment of the duty, whether provisional or final, as the case may be. 10. Now it may be noticed that the Act does not prescribe any particular form in which the order of assessment is to be made. In the very nature of things, no formal order of assessment can be expected when there is no dispute as to the classification or the rate of duty. No formal order can be expected in such a case, it is more like acrossthecounter' affair. In the present case, it may be reiterated that the appellant himself classified the goods under tariff item No. 73.33/40 and paid the duty at the rate applicable thereunder. At that stage, he did not raise any dispute either as to classification or as to the right of duty applicable. Hence, there was no occasion for passing a formal order since there was no lis at that stage. The bill of entry presented by the appellant was signed, signifying approval by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33. Under the provisions of section 17 as amended by Finance Act of 2011, section 17(1) has provided to selfassess the duty if any leviable on such goods by importer or exporter as the case may be. Self-assessment is an assessment as per the amended definition of section 2(2). It is further provided that proper officer may verify the self-assessment of such goods, and for this purpose, examine or test any imported goods or exported goods or such part thereof as may be necessary. The power to verify self-assessment lies with the proper officer and for that purpose under section 17(3), he may require the importer, exporter or any other person to produce such document and furnish such information, etc. If the proper officer on verification has found on examination or testing of the goods or as part thereof 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 the Act, may proceed to reassess the duty leviable on such goods. Section 17(5) of the Act as amended provides that where reassessment done under subsection 17(4) is contrary to the assessment done by the importer or exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President, it is deemed to be filed under the provision of section 27 (1) as existed and to be dealt with under section 27(2). The period of limitation of one year provided by the provisions of section 27 has to be computed in the case of goods which are exempt from payment of duty by a special order issued under section 25(2) from the date of issue of such an order as provided in section 27(1B)(a). Where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any Court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction. It is provided in Section 27(1B)(c) that where any duty is paid provisionally under Section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in the case of reassessment, from the date of such reassessment. The second proviso to section 27 makes it clear that limitation of 1 year shall not apply where any duty or interest has been paid under protest. 37. Under Section 27(2)(a) it is incumbent upon the applicant to satisfy that the amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The view was taken by us also gains support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that whereas 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, if 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 to be reopened in a proceeding for the refund which, if we may term it so, is in the nature of execution of a decree/order. In the case at hand, it was specifically mentioned in the order of the Assistant Collector that the assessee may file an appeal against the order before the Collector (Appeals) if so advised. (emphasis supplied) 40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) 2004 (172) ELT 145 (SC)= (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 128 are extracted hereunder: 128. Appeals to [Commissioner (Appeals)]. ( 1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a [Principal Commissioner of Customs or Commissioner of Customs] may appeal to the [Commissioner (Appeals)] [within sixty days] from the date of the communication to him of such decision or order: [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India 2009 (240) ELT 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra). 45. Reliance was also placed on a decision of Rajasthan High Court with respect to service tax in Central Office Mewar Palace Org. v. Union of India 2008 (12) STR 545 (Raj.). In view of the aforesaid discussion, we are not inclined to accept the reasoning adopted by the High Court, that too is also not under the provisions of the Customs Act. 46. The decision in Intex Technologies (India) Ltd. v. Union of India has followed Micromax (supra). The reasoning employed by the High Courts of Delhi and Madras does not appear to be sound. The scope of the provisions of refund under Section 27 cannot be enlarged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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