TMI Blog2021 (8) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... willful wrong declaration with ulterior motive to defraud the Revenue. Demand proposed in the Show Cause Notice was confirmed against which the assessee approached the High Court. The High Court, while relying on the judgements of the Hon ble Supreme Court, held that the Department has no power to reassess a shipping bill which was duly assessed by proper officer at the time of export of goods to dispute the export benefit already allowed to the assessee without challenging the shipping bills. In the case of CENTURY KNITTERS (INDIA) LTD. AND ORS. VERSUS UNION OF INDIA AND ORS [ 2019 (10) TMI 804 - PUNJAB AND HARYANA HIGH COURT] , the High Court took the same view as held in the case of Jairath International, where it was held that inspite of availability of alternative remedy available under 1962 Act, writ petition is maintainable in view of involvement of pure questions of law as well jurisdiction and law enunciated by Hon ble Supreme Court and followed by this court time and again. Since the legal position stands already decided by the Hon ble High Court as well as earlier decisions of this Tribunal, the impugned adjudication orders cannot be legally sustained and hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute were not of Indian origin. He submitted that in the course of adjudication, the appellant duly submitted that the exported goods were of Indian origin, however, the adjudicating authority, i.e. the learned Commissioner of Customs, negated their submissions, as observed in para 26 of the order, by stating that the appellant for the first time claimed the goods to be of Indian origin. He submitted that the noticee is entitled to contest the allegations levelled at the adjudication stage and that the learned Commissioner could not simply brush aside the defence submitted in reply to show cause notice. He also submitted that the notices were issued merely on the basis of statements of authorized representatives of certain suppliers, claiming the goods to have been imported from Bhutan, without allowing any cross examination. He relied on the decision of the Hon ble Punjab Haryana High Court in the case of Jairath International vs. UOI 2019 (370) ELT 116 (P H), to submit that the adjudicating authority has no power to re-assess the shipping bills which has already been assessed by the Proper Officer while ordering clearance under Section 51 of the Act. He submitted that the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Show Cause Notice was confirmed against which the assessee approached the High Court. The High Court, while relying on the judgements of the Hon ble Supreme Court, held that the Department has no power to reassess a shipping bill which was duly assessed by proper officer at the time of export of goods to dispute the export benefit already allowed to the assessee without challenging the shipping bills. It would be relevant to reproduce the relevant paragraphs of the observations made in the case of Jairath International (Supra) as below:- 10. Before proceeding further, it would be useful to understand scheme of 1962 Act which deals with import export of goods. .. As per scheme of 1962 Act, at the time of import, bill of entry is filed under Section 46 of 1962 Act and at the time of export shipping bill is filed under Section 50 of the 1962 Act. In case of bill of entry as well shipping bill assessment is framed under Section 17 of 1962 Act. In both cases, Customs authorities under Section 47/51 of 1962 Act permit clearance after being satisfied that goods are not prohibited and importer/exporter has paid duty if any assessed. There is no prescribed form in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not been challenged by the Importer before Appellate Authority under Section 128 of 1962 Act. Hon ble Supreme Court after noticing its earlier judgments in the case of Priya Blue Industries v. Commissioner of Customs - 2004-TIQL-78-SC-CUS = 2004 (172) E.L.T. 145 (S.C.), Escorts Ltd. v. Union of India Ors. -2002-TIQL-2706-SC-CX = 1998 (97) E.L.T. 211 (S.C.) and Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) has held that Section 27 is more or less in the nature of execution proceedings and 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 otherwise. Order of self-assessment qua Bill of Entry is an appealable order and Revenue as well Assessee may prefer an appeal against order of self-assessment. The provisions of Section 27 cannot be invoked in the absence of amendment or modification having been made in the Bill of entry on the basis of which self-assessment has been made and the refund proceedings are in the nature of execution for refunding amount. Reassessment is permitted only under Sections 17(3)(4) (5) of the 1962 Act. It wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r officer gets power to reassess already assessed shipping bill. Prior to 8-4-2011, it was proper officer who used to frame assessment and w.e.f. 8-4-2011 he gets first opportunity to doubt the self-assessed value at the time of export and, secondly, he may prefer an appeal before Appellate Authority. A team of Customs officers at the time of export of goods verify different particulars including value declared by an exporter. The declared value may be accepted or re-assessed and in case re-assessed value is not accepted by exporter, proper officer has to pass speaking order. Thus, as per scheme of the 1962 Act, department is not remediless and Courts are bound to interpret law as such. Courts while interpreting law can neither add nor subtract any word from the plain language irrespective of consequences. It is the legislature who has to rectify, repair or amend the law in case any judgment interpreting law is not acceptable or is contrary to intent and purport of enactment. 17. On plain reading of Sections 17, 50 and 51 with Valuation Rules, 2007, we find that Respondent is neither vested with power of reassessment of goods already exported under Rule 16 of Drawback Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners were further called upon to show cause as to why duty drawback should not be disallowed and recovered from them under Rule 16 of Drawback Rules, 1995. .. 5. After having scrutinized record of the case and heard arguments of both sides, we find that issues raised in present petitions are squarely covered by our judgment dated 20/09/2019 in Famina Knit Fabs Vs UOI, 2019-TIOL-2208-HC-P H-CUS and judgment dated 04.10.2019 in Jairath International and another Vs UOI CWP No. 702 of 2017. 6. In the present writ petitions, concededly identical questions as raised in Famina Knit Fabs Jairath International are raised. In both judgments, we have held that inspite of availability of alternative remedy available under 1962 Act, writ petition is maintainable in view of involvement of pure questions of law as well jurisdiction and law enunciated by Hon'ble Supreme Court and followed by this court time and again . While adjudicating Famina Knit Fabs Vs UOI, 2019-TIOL-2208-HCP H-CUS, we had left open question of power of Respondent-department to reassess value of goods which have already been exported out of country, however keeping in view law laid by Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The issue with regard to the effect of non-filing of an appeal against the assessment order and denial/claim of benefit arising out of such assessment at a subsequent stage is no more open for any debate, as per the well settled principle of law laid down by the Hon'ble Supreme Court in the case of Collector of Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd., reported in 2000 (120) ELT 285 (S.C.). The relevant paragraph in the said judgment is quoted below: .. 12. Though, the above judgment was delivered in context with refund claim under the Central Excise statute, but the principle decided therein is squarely applicable to the facts of the present case inasmuch as legality or propriety of a statutory order cannot be questioned or disturbed subsequently by passing an order on the issue, which has already been considered and dealt with on the previous occasion, while passing the order under Section 51 of the Act . Further, the issue with regard to filing of appeal against an order passed under the statute has also been dealt with by the Hon'ble Supreme Court in various occasions. In the case of Shabina Abraham (supra), the Hon'ble Supreme Court hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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