TMI Blog2023 (4) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs 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. Following the ratio in the case of ITC , this Bench in a recent decision of M/S HOLY LAND MARKETING PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [ 2023 (2) TMI 46 - CESTAT NEW DELHI ], in categoric terms held that once an order permitting clearance of goods for home consumption is issued there cannot be any more assessment as the only recourse available is to file an appeal before the Appellate authority and therefore concluded that the Deputy Commissioner had no authority to issue an order of assessment after the goods were permitted to be cleared for home consumption. In the present case, the customs officers having found that the self assessment by the importer was not correct, reassessed the goods whereby the value of the goods was enhanced. The importer readily agreed with the said reassessment and paid the enhanced customs duty and got the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to review its own order and reassess the bill of entry once again after the goods were cleared on payment of duty and the same was bad in view of the decision of the Apex Court in ITC - there are no justification to interfere with the said order and we accordingly, affirm the view taken by the Commissioner. In view of the settled legal position on the issue of jurisdiction as discussed above, the case law cited by the appellant in M/s Bright Point India Pvt. Ltd., vs. C.C. Mumbai, Air Cargo, [ 2021 (11) TMI 285 - CESTAT MUMBAI ] is not applicable in the facts herein. The judgements cited on merits of valuation needs no consideration as we are deciding the issue of jurisdiction against the appellant. Hence we are not inclined to accept the submissions of the appellant. Since the appeals are being dismissed on the ground of jurisdiction, it is not required to dwell on the merits of the matter or the issue of unjust enrichment which is otherwise covered by the decision of the Apex Court in Union of India Vs Solar Pesticides Pvt. Ltd. [ 2000 (2) TMI 237 - SUPREME COURT ]. Appeal dismissed. - Customs Appeal No. 50904 of 2019, 50905 of 2019, 50927 of 2019 and 5095 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contract price paid was the transaction value and therefore accepted the value of the goods as declared by the appellant at 960 USD MT. The said Order-in-original No. 35 dated 27.02.2016 of the adjudicating authority was examined by the department and noticing that the final assessment of the goods cannot be re-opened as under the Customs Act there is no such provision for reassessment of the goods. Accordingly, the department filed an appeal before the Commissioner (Appeals). 5. In the meanwhile, the importer filed the refund claim for Rs. 1,04,466/- under section 27 of the Customs Act, 1962 on account of excess custom duty paid in view of the order of reassessment dated 27.02.2016. Accordingly, the adjudicating authority vide Order-in-original No. 166 dated 31.08.2016 allowed the refund claim on the ground that the importer had procured the goods as raw material for self consumption and therefore the principle of unjust enrichment is not applicable in the case. 6. The department challenged the order of refund by filing separate appeal and the appellant also filed cross objections thereto. The Commissioner (Appeals) disposed of both the appeals filed by the department as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompetent Authority passed its order for refund vide its Order No. 164/2016 dated 24.08.2016. The Competent Authority has also confirmed that the importer has not passed any incidence of excess duty, hence unjust enrichment shall not be applicable under Section 28D of the Act. 29.11.2016 The commissioner of Customs (Preventive) passed order in Review No. 02/2016 dated 25.11.2016 against order of reassessment No. 34/2016 dated 26.02.2016. The Commissioner of Customs (Preventive) also passed order in Review No. 05/2016 dated 25.11.2016 against order of refund No. 164/2016 dated 24.08.2016 and the same were filed before the Hon ble Commissioner (Appeals). 15.01.2019 The Commissioner (Appeals) disposed of both the appeals in favour of the Department by setting aside the reassessment order and subsequently the refund order based on the ratio laid down by the Hon ble Apex Court in Priya Blue, Flock India case laws that the Adjudicating Authority has no authority to review its own order. The above ratio has been confirmed by the Hon ble Apex Court in ITC case. 8. We have heard the learned Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs 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). 10. Following the ratio in the case of ITC (supra), this Bench in a recent decision of M/s Holy Land Marketing Pvt. Ltd., Vs. Commissioner of Customs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classification of such goods as determined in accordance with the provisions of the Customs Tariff Act; (b) the value of such goods as determined in accordance with the provisions of this Act and the Customs Tariff Act; (c) exemption or concession of duty, tax, cess or any other sum, consequent upon any notification issued therefor under this Act or under the Customs Tariff Act or under any other law for the time being in force; (d) the quantity, weight, volume, measurement or other specifics where such duty, tax, cess or any other sum is leviable on the basis of the quantity, weight, volume, measurement or other specifics of such goods; (e) the origin of such goods determined in accordance with the provisions of the Customs Tariff Act or the rules made thereunder, if the amount of duty, tax, cess or any other sum is affected by the origin of such goods; (f) any other specific factor which affects the duty, tax, cess or any other sum payable on such goods, and includes provisional assessment, self-assessment, re-assessment and any assessment in which the duty assessed is nil ; 13. It may be seen that assessment is the determination of the dutiability of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TD. Versus COMMISSIONER OF CUSTOMS [ 2021 (376) E.L.T. 3 (S.C.)] that the power under section 28 is a power to review the earlier decision of assessment and it is not inherent in any authority but is specially conferred on the proper officer. The relevant paragraphs of this judgment are as follows. 12. The nature of the power to recover the duty, not paid or short paid after the goods have been assessed and cleared for import, is broadly a power to review the earlier decision of assessment. Such a power is not inherent in any authority. Indeed, it has been conferred by Section 28 and other related provisions. The power has been so conferred specifically on the proper officer which must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods i.e. the Deputy Commissioner Appraisal Group. Indeed, this must be so because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision to assess the goods. 13. Where the statute confers the same power to perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh appropriate selection criteria. (3) For the purposes of verification under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (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 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. Explanation. - For the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of facts,- (a) the proper officer shall, within two years from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; ******** Explanation 1 . - For the purposes of this section, relevant date means,- (a) in a case where duty is not levied or not paid or short-levied or short-paid, or interest is not charged, the date on which the proper officer makes an order for the clearance of goods; (b) in a case where duty is provisionally assessed under section 18, the date of adjustment of duty after the final assessment thereof or re-assessment, as the case may be; (c) in a case where duty or interest has been erroneously refunded, the date of refund; (d) in any other case, the date of payment of duty or interest 20. What is evident is that the relevant date to calculate the time limit to issue a notice under section 28 is the date on which an order permitting clearance of goods is given. This is also the date on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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