TMI Blog2021 (4) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... ide by the learned Commissioner which is against law as held in various decisions relied upon by the appellant. An identical issue has been considered by two Division Benches of this Tribunal in the case of M/S. CALISON FIBRES PVT LTD. VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , NHAVA SHEVA [ 2019 (7) TMI 1060 - CESTAT MUMBAI] . In para 5 in the case of Calisons Fibres Pvt. Ltd., the Division Bench directed that the request for reassessment be treated as application under Section 149 of Customs Act, 1962 for amendment of Bill of Entry and accordingly, directed the proper officer to consider the said application and pass appropriate order in accordance with law after granting opportunity of hearing to the appellant. Appeal disposed off. - Customs Appeal No. 20192 of 2020 - Final Order No.20115/2021 - Dated:- 26-4-2021 - SHRI S.S GARG, JUDICIAL MEMBER For the Appellant : Mr. M.S. NAGARAJA, ADV For the Respondent : Mrs. C. V. Savitha, Superintendent (AR) ORDER The present appeal is directed against the impugned order dated 31.12.2019 passed by the Commissioner of Customs (Appeals) whereby the appeal of the appellant was rejected and order passed by the Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd claim of excess ADD paid under protest. The Assistant Commissioner, thereafter, issued a show-cause notice dated 15.2.2019 and the appellant filed reply to the show-cause notice and the Assistant Commissioner, thereafter passed Order-in-Original dated 28.3.2019 rejected the claim for refund of ADD of ₹ 9,41,005/- on the ground that the claimant has not challenged the assessment of Bill of Entry nor got it reassessed before or after out of charge of goods and hence, the refund claim is not maintainable. However, the Assistant Commissioner recorded in para 2 that the importer has an option to file an application for amendment of Bill of Entry under Section 149 of the Customs Act, 1962 to rectify any mistake in the Bill of Entry based on documents available at the time of importation and in case the application is allowed, thereafter importer can file application for refund. Aggrieved by the said order, appellant filed appeal before the Commissioner (A) and the Commissioner (A) vide the impugned order has rejected the appeal of the appellant mainly relying upon the judgment of the Hon ble Supreme Court in the case of ITC Limited vs. CCE, Kolkata reported in 2019 (368) ELT 216 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 149 of the Customs Act, 1962 is bad in law being beyond the scope of show-cause notice and hence, unsustainable. In support of this submission, he relied upon the following decisions: (i) Caprihans India Ltd. vs. CCE: 2015 (325) ELT 632 (SC) (ii) CC vs. Toyo Engineering India Ltd.: 2006 (201) ELT 513 (SC) (iii) CCE C, Surat vs. Sun Pharmaceuticals Industries Ltd.: 2015 326) ELT 3 (SC) (iv) Madras Cements Ltd. vs. CCE, Trichy: 2015 (325) ELT 239 (SC) (v) Hindustan Polymers Co. Ltd. vs. CCE: 1999 (106) ELT 12 (SC) 4.1 He also submitted that it is well settled law that the importer may seek amendment of Bill of Entry under Section 149 and/Section 154 of the Customs Act, 1962 and thereafter claim refund of excess duty paid without any time limit. For this, he relied upon the following decisions: (i) Usha Industries Ltd. vs. ACC, Chennai: 2019 (365) ELT 56 (Mad.) (ii) CC vs. Volvo India Pvt. Ltd.: 2019 (365) ELT 803 (Mad.) (iii) Hero Cycles Ltd. vs. UOI: 2009 (240) ELT 490 (Bom.) maintained in Union of India vs. Hero Cycles Ltd.: 2010 (252) ELT A103. (iv) Calisons Fibres Pvt. Ltd. vs. CC (Imports): 2019 (370) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenged the show-cause notice as well as the Order-in-Original allowing the option to the appellant to seek an amendment in the Bill of Entry as permissible under Section 149 of the Customs Act, 1962 but the same was suo moto set aside by the learned Commissioner which is against law as held in various decisions relied upon by the appellant cited supra. Hence, the said finding of the Commissioner is not sustainable. Further, I find that the Hon ble Bombay High Court in the case of Dimension Data India Pvt. Ltd. cited supra has distinguished the Hon ble Apex Court s decision in the case of ITC Ltd. and has observed in para 22.1 and 22.2 as under: 22.1 . From the question itself, it is clear that the issue before the Supreme Court was not invocation of the power of re-assessment under section 17(4) or amendment of documents under section 149 or correction of clerical mistakes or errors in the order of self-assessment made under section 17(4) by exercising power under section 154 vis-a-vis challenging an order of assessment in appeal. The issue considered by the Supreme Court was whether in the absence of any challenge to an order of assessment in appeal, any refund application a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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