TMI Blog2023 (6) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... er proceedings. It is the settled position of law that the right to appeal is available to an assessee as well as the Department, even against self-assessment; until and unless the self-assessment is modified and the duty thereafter is re-determined, no application would lie for refund of any duty from such self-assessment since the refund authority cannot assume the role of an adjudicating / assessing authority. This is because the scope of refund is limited as against the scope of adjudication proceedings and hence, the authority considering any refund application cannot revisit the adjudication proceedings for which he has no jurisdiction. This is also in view of separate statutory provisions being provided for, for both refund as well as adjudication proceedings. The Hon ble Supreme Court in the case of M/s. ITC Ltd. [ 2019 (9) TMI 802 - SUPREME COURT] has held that even an order of self-assessment is an order against which an appeal would lie, provisions of Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill-of-entry and that refund proceedings are in the nature of execution for refunding amount. The refund applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced relevant purchase order / invoice showing payment of high sea sales commission charges at Rs.33/- per M.T. The above was not considered by the adjudicating authority. Reference is made to Board Circular No. 32/2004-Cus. dated 11.05.2004 which inter alia clarified that the adjudicating authority has no choice but to adopt the high sea sales commission / trade margin. Reference was also made to the Instructions in C.B.E.C. Manual on refunds, which was not considered by the adjudicating authority. The adjudicating authority has also not given any finding nor has he considered the provisions of Rule 10(3) and Rule 10(4) of the Customs Valuation Rules, 2007. 4.3 With the above observations, the learned first appellate authority has given a finding that the assessee was eligible for refund based on the duty paid on the assessable value plus Rs.33/- per M.T. by them as trade margin, but however, with respect to unjust enrichment, he has directed the assessee to produce all relevant documents before the lower authority to prove that the incidence of duty was not passed on to the buyers. 5. Aggrieved by the above, the Revenue has filed the present appeal on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of the first appellate authority in holding that the assessee/appellant therein was eligible for refund, is correct in law? 10.1 The first appellate authority has held that the appellant had produced relevant purchase order and invoice, showing high sea sales commission charges of Rs.33/- per M.T. which was not considered by the adjudicating authority. In the adjudication order, however, the following observations were made by the authority, after verifying documents submitted by the importer: - a) Import cargo was assessed to import duty based on the price as per the formula set forth in the purchase order dated 24.02.2011 and purchase order dated 25.09.2010. b) In the purchase order, it has been enumerated as to how the weighment quantity for assessment purpose to be followed, i.e., by adding bonus point for gross calorific value / ash content, etc., at clause 8.1. c) The weighment quantity declared as per the draft survey report (ADB) and C F price payable, as per clause 2.1, based on the certificate of sampling analysis report, were considered for assessment purposes. d) The cargo was self-assessed by adding 2% HSS commission to the CIF price which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T., the importer had not demonstrated as to how the margin of profit of Rs.33/- per M.T. was arrived at, anywhere in the documents furnished by it. 11.2 The importer s claim as to the Bill-of-Lading quantity to be adopted for assessment is contradictory to the conditions set forth in the purchase order, which is mutually agreed upon between the parties, specifically at clause 3.5 of the purchase order as pointed out by the adjudicating authority and this fact has not been controverted by the assessee. If the claim of the importer is to be accepted then the survey report based on ADB quantity is farce, which is again declared by the importer himself. Moreover, the Board Circular mandates that high sea sale contract price paid by the last buyer is required to be established with supporting documents whereas no such documentary evidences were submitted to prove the trade margin of Rs.33/- per M.T. and therefore, the claim of the importer is clearly contrary to the instruction of the Board Circular. 11.3 Assessable value adopted by the claimant-importer by including 2% HSS load and duty calculated by them was accepted by the proper officer and the duty so arrived at was also p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression Any person is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against any order which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra). 44. The provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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