TMI Blog2023 (3) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... quence of the reassessment of the Bills of Entry or amendment in the Bills of Entry - The Commissioner (Appeals), therefore, committed no illegality in taking a view that refund has to be granted to the respondent as the order for amendment in the Bills of Entry had attained finality. Whether the refund claims were barred by time? - HELD THAT:- The Commissioner (Appeals) held that if section 149 of the Customs Act relating to amendment in the Bills of Entry is made applicable, the cause of action for claiming refund would arise only after the amendment is made and so the limitation for claiming refund would start from that date. In coming to this conclusion, the Commissioner (Appeals) placed reliance upon the decision of the Bombay High Court in KESHARI STEELS VERSUS COLLECTOR OF CUSTOMS, BOMBAY [ 1996 (9) TMI 154 - HIGH COURT OF JUDICATURE AT BOMBAY ], wherein what was examined was whether the rejection of the refund claim on the ground of limitation contemplated under section 27 of the Customs Act was justified. It was held by the Bombay High Court that the refund was within time from the date the rectification was carried out and limitation was not to be counted from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import as it was under an impression that it did not satisfy the condition set out in the Notification. 2. The issue relating to applicability of conditions of non-availment of CENVAT credit in relation to the imported goods under the Notification was settled by the Supreme Court in favour of the importers in SRF Ltd. vs. Commissioner of Customs, Chennai [2015 (318) E.L.T. 607 (S.C.)] . The Supreme Court also dismissed the review petition filed by the department and the decision is reported in 2016 (340) E.L.T. A202(S.C.). 3. After the aforesaid judgment was delivered by the Supreme Court in SRF, the respondent filed letters dated 16.05.2015 and 05.06.2015 for re-assessment of the Bills of Entry and also claimed refund of differential CVD. This refund request was rejected verbally and the respondent was asked to get re-assessment of these Bills of Entry. The Bills of Entry were initially re-assessed in March 2018 by the Deputy Commissioner by manually/physically making the requisite changes in the duty liability on the face of the Bills of Entry, but the Deputy Commissioner, by a letter dated 22.11.2018, amended the reassessment orders under section 154 of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only to an appeal filed under section 128 of the Customs Act. 7. The relevant portions of the aforesaid order dated 21.08.2020 passed by the Commissioner (Appeals) are reproduced below: 5.4.9 Thus if the self-assessment is modified under any of the above provisions of the Act and the same results in lowering of duty liability than what was paid on account of self-assessment, refund claim would arise and the same has to be entertained under section 27 of the Customs Act, 1962. Hon ble Supreme Court has nowhere stated that reassessement can only be done after obtaining an appellate order by filing appeal under section 128 of the Act. Thus, I find no contradiction in the reassessments done and the law laid down by Hon ble Supreme Court in ITC Ltd. [2019 (368) ELT 246 (SC)]. 5.5 Another plea that has been taken by the Refund Sanctioning Authority is that the reassessment done by the Deputy Commissioner Gr VA was modified to amendment under Section 149 of the Act‟ by the Deputy Commissioner Gr VA in terms of powers conferred to him under section 154 of the Act. Without going into merits of this action of Deputy Commissioner Gr VA, even if it is accepted that bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mhan, learned counsel for the respondent assisted by the Shri Rachit Jain and Shri Ashwani Bhatia submitted that: (i) The respondent had sought amendment in the Bills of Entry and the Bills of Entry were amended in the year 2018. This would be in accordance with the judgment of the Supreme Court in ITC and refund can be claimed on the basis of such amendment made under section 149 of the Customs Act; (ii) The respondent correctly claimed refund of duty paid by it and such refund is in consonance with the provisions of the Customs Act and the judgment of the Supreme Court in ITC; (iii) The amendment in the Bills of Entry attained finality in the absence of an appeal and the Deputy Commissioner does not have the power to review his own order; (iv) The claim for refund is not time barred; and (v) Sections 17 or 149 of the Customs Act do not provide time limit for seeking amendment of the Bills of Entry. 10. The submissions advanced by the learned special counsel appearing for the department and the learned counsel for the respondent have been considered. 11. It transpires that the respondent had earlier filed Bills of Entry in respect of the imported mobile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion that arose for consideration before the Supreme Court was whether a self-assessment, when there is no speaking order, can be termed to be an order of self-assessment. It was urged on behalf of the assesses that there is no application of mind in such a situation and merely an endorsement is made by the authorities concerned on the Bills of Entry which endorsement cannot be said to be an order, much less a speaking order. This contention of the assesses was not accepted by the Supreme Court and it was held that the endorsement made on the Bills of Entry would be an order of assessment and that when there is no lis, a speaking order is not required to be passed in across the counter affair . The Supreme Court then examined the provisions of sections 17 and 27 of the Customs Act, both prior to the amendments made by Finance Act 2011 and after the amendments, and observed that there is no difference even after the amendments as self-assessment is also an assessment. 14. It needs to be noted that in Escorts Ltd. v. Union of India Ors [ 2002-TIOL-2706-SC ] , the issue that had arisen for consideration before the Supreme Court was regarding the Bills of Entry classifying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the order of assessment or self assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of section 27 to set aside the order of self assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self assessment, he has to get the order modified under section 128 or under other relevant provisions of the Act. 48. Resultantly, we find that the order(s) passed by the Customs, Excise and Service Tax Appellate Tribunal is to be upheld and that passed by the High Courts of Delhi and Madras to the contrary, deserves to be and are hereby set aside. We order accordingly. We hold that the application for refund were not maintainable. The appeals are accordingly disposed of. Parties to bear their own coasts as incurred. (emphasis supplied) 16. It would, at this stage, be appropriate to examine sections 17, 27, 149 and 154 of the Customs Act. 17. Section 17 of the Customs Act deals with assessment of duty. While sub-section (1) deals with assessment, sub-section (4) deals with re-assessment. The relevant portions of section 17 are reprod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1B ) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely:- (a) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 25, the limitation of one year shall be computed from the date of issue of such order; (b) 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; (c) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless the order of assessment or self-assessment is modified in accordance with law by taking recourse to appropriate proceedings . 23. In view of the aforesaid judgment of the Supreme Court in ITC. it was open to the respondent to invoke the provisions of sections 149 or 154 of the Customs Act for seeking amendment in the Bills of Entry or correction in the Bills of Entry for claiming refund. 24. The Bombay High Court in Dimension Data India vs. Commissioner of Customs and anr [ 2021 (1) TMI 1042 Bombay High Court ] examined this precise issue and after referring to the provisions of sections 149 and 154 of the Customs Act, observed as follows: 18. From a careful analysis of section 149, we find that under the said provision a discretion is vested on the proper officer to authorise amendment of any document after being presented in the customs house . However, as per the proviso, no such amendment shall be authorised after the imported goods have been cleared for home consumption or warehoused, etc. except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, etc. Thus, amendment of the Bill of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph 43 as extracted above that an order of self- assessment is nonetheless an assessment order which is appealable by any person aggrieved thereby. It was held that the expression any person is an expression of wider amplitude. Not only the revenue but also an assessee could prefer an appeal under section 128. Having so held, Supreme Court opined in response to the question framed that the claim for refund cannot be entertained unless order of assessment or selfassessment is modified in accordance with law by taking recourse to appropriate proceedings. It was in that context that Supreme Court held that in case any person is aggrieved by any order which would include an order of self-assessment, he has to get the order modified under section 128 or under other relevant provisions of the Customs Act (emphasis ours). 22.2. Therefore, in the judgment itself Supreme Court has clarified that in case any person is aggrieved by an order which would include an order of self-assessment, he has to get the order modified under section 128 or under other relevant provisions of the Customs Act before he makes a claim for refund. This is because as long as the order is not modifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Supreme Court in ITC Ltd. (supra); that the Supreme Court clearly stated in the above case that a BoE has to be amended before filing a claim of refund under Section 27; and that the ratio of decision is very clearly applicable, and it is squarely covered in the present case. ***** 19. Petitioner also contended that the 2nd respondent erred in holding that the BoEs should have been challenged only by way of filing an appeal before the Appellate authority and on not being challenged, the assessment became final. 20. Petitioner pointed out that a BoE can be amended either by filing an appeal u/s.128 or being amended under Sec.149 of the Act; and he could not have insisted that only an appeal is a proper remedy to amend the BoEs ignoring Sec. 149 of the Act. (emphasis supplied) 26. The contention of the Department, as noted in paragraphs 23, 24 and 26 of the aforesaid judgment are reproduced below: 23. It is contended that meanwhile the Supreme Court in ITC Ltd. (2 supra) held that refund under Section 27 would only be permissible when the Bill of Entry had been amended or modified under the provisions of the Customs Act, 1962; that in ITC Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment or modification of an assessment order can only be done in an Appeal under Section 128 . In para 47, the Court held categorically. 35. Thus, even the Supreme Court clearly indicated that the modification of the assessment order can be either under Section 128 or under other relevant provisions of the Act i.e. Section 149. 36. Therefore, the stand of the respondents in the counter affidavit that only reassessment under Section 128 is the remedy available to the petitioner, and Section 149 cannot be invoked, is not tenable. We also reject the plea of the 2nd respondent that there is no possibility of getting modified an order of assessment under any other relevant provision and that petitioner is trying to overcome limitations stipulated in Section 128. 37. The only condition required to be fulfilled for seeking amendment of documents such as a BoE under Section 149 is that such amendment should be sought on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be. ***** 46. Moreover, the said order was passed on 28.06.2019 prior to the decision in ITC Ltd. (supra) on 18.09.2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment was not assailed by the respondent in appeal under section 128 of the Customs Act, the refund applications could not be allowed. Such a stand could not have been taken by the Department. If the department felt aggrieved by the order seeking an amendment in the Bills of Entry under section 149 of the Customs Act, it was for the department to have assailed the order by filing an appeal under section 128 of the Customs Act. This plea could not have been taken by the department to contest the claim of the respondent while seeking refund filed as a consequence of the reassessment of the Bills of Entry or amendment in the Bills of Entry. 30. The Commissioner (Appeals), therefore, committed no illegality in taking a view that refund has to be granted to the respondent as the order for amendment in the Bills of Entry had attained finality. 31. The second issue that needs to be decided is whether the refund claims were barred by time. The department contends that the period of one year should be counted from the date of assessment and not from the date of amendment was carried out in the Bills of Entry. This contention of the department has not found favour with the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the limitation runs from the date of payment of duty and not from the date of rectification. We find it difficult to accept this contention. Till the assessment order is rectified, the question of refund would not arise at all. In the present case, the assessment order was rectified on 13-12-2001 pursuant to the order of the Supreme Court dated 13-3-2001. In the present case, the refund claim was made even prior to the rectification. Therefore, the refund claim could not be said to be time-barred. (emphasis supplied) 33. It would be seen that the Bombay High Court held that the question of refund would arise only when the assessment order is rectified. 34. The Commissioner (Appeals), therefore, committed no illegality in holding that the refund claims were not barred by time. 35. In view of the aforesaid discussion, there is no illegality in the order of the Commissioner (Appeals) allowing the six appeals filed by the respondent. 36. The present appeals that have been filed by the department to assail the orders passed by the Commissioner (Appeals), therefore, deserve to be dismissed and are dismissed. The six stay applications filed by the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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