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TMI Blog2023 (9) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... had erroneously declared value of imported software to be Rs.10,27,30,275/- as against Rs.1,91,24,415/- and filed an appeal to reassess their goods and seek refund of the excess duty paid by them. The Commissioner (Appeals) noted that the appellant being registered as an Accredited Client Programme (ACP) and the imports made by such importers are normally facilitated through Risk Management System (RMS); in other words, the goods were cleared without examination based on the transaction value declared in the Bill of Entry and there is no dispute that there was any irregularity in the assessment made at the time of import. The only defense of the appellant was that there was a clerical error committed by them where higher value was declared which resulted in excess payment of customs duty and hence, they sought to reopen the assessment and rectify a clerical error in terms of provisions of section 149 and 154 of the Customs Act 1962. The Commissioner (A) observed that section 149 allows amendment of a Bill of Entry after the clearance of the goods only on the basis of documentary evidences which were in existence at the time the goods were cleared for home consumption; while Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Steel Authority of India Ltd. vs. CC, Chennai: 2016 (343) ELT 602 (Tri.-Chennai) (iii) Mohit Overseas vs. Commissioner of Customs: 2016 (335) ELT 18 (Del.) (iv) UFLEX Ltd. vs. Commissioner of Customs, New Delhi: 2013 (298) ELT 476 (Tri.-Del.) (v) Oswal Agloimpex Pvt. Ltd. vs. Commissioner of Customs, Kandla: 2012 (283) ELT 300 (Tri.-Ahmd.) (vi) Commissioner of Central Excise, Nhava Sheva vs. Crest Chemicals: 2009 (244) ELT 361 (Tri.-Mum.) (vii) Chirag Enterprises vs. Commissioner of Customs (EP), Mumbai: 2008 (232) ELT 730 (Tri.-Mumbai) (viii) Senka Carbon Pvt. Ltd. vs. Commissioner of Customs, Chennai: 2007 (216) ELT 397 (Tri.-Chennai) (ix) Union of India vs. Aluminium Industries Ltd.: 1996 (83) ELT 41 (Ker.) 3. The learned Authorised Representative on behalf of the Revenue reiterating the findings of the Commissioner (A) submits that since the goods were not examined at the time of import, the value was accepted by both the Department and the appellant, the question of reopening of the assessment does not arise. Moreover, the documents that were submitted before the Commissioner (A) were not available at the time of import but they happen to have revised the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e committed in any of the invoices. Section 149. Amendment of documents. - Save as otherwise provided in Sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the custom house to be amended 1 [in such form and manner, within such time, subject to such restrictions and conditions, as may be prescribed]: Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except 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. (Emphasis supplied) From the above provisions, it is abundantly clear that for invoking Section 149, relevant documents should have been in existence at the time of import but in this case, obviously the invoice was revised based on the request of the appellant and the veracity of the genuineness of this invoice could not be verified since the goods were not examined at the time of import nor were available for examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word 'cum' duty drawback, but change of entire status and character of the documents. Even if it was to be taken as a case of amendment, the proper officer may not be in possession of the documents sought to be amended after lapse of such a long period, particularly when the goods already stood exported. For enabling an exporter to draw the benefits of any scheme, not only physical verification of documents would be required, but as is noted by both the authorities below, the verification of the goods of export as also their examination by the Customs was necessarily required to be done. In the given factual circumstances, that was rightly held to be impossible. The Commissioner in the remand case rightly distinguished the cases cited on behalf of the exporter from the facts of the present. The finding of fact as arrived at by the Commissioner has been rightly upheld by the CESTAT. 7. We do not see any perversity or illegality in the discretion exercised by the Commissioner in rejecting the request of the exporter of conversion/amendment from one scheme to the other after a lapse of more than one year. There is no reason to interfere in the findings of the fact arrived at by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le request for amendment. Therefore, we find that the order passed by the Tribunal cannot be sustained and accordingly, the same is set aside and the appeal filed by the Department is allowed. The questions of law raised in the appeal are answered in favour of the Department. No costs. (Emphasis supplied) 7. The High Court of Gujarat in the case of Anil Sharma Versus Union of India 2017 (350) E.L.T. 332 (Guj.) held that: "6. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that it is the case of the petitioner that though they imported the goods under the shipping bill under the Advance Authorization Scheme, through oversight and by mistake it was punched as duty drawback. Therefore, it is the case on behalf of the petitioner that subsequently when they requested to amend the bill of entry, the case would fall under Section 149 of the Customs Act, which does not provide any limitation to make application to amend the shipping bill and therefore, the authorities are not justified in rejecting the application on the ground that the same is not within the period of three months, relying upon Board Circular No. 36 of 2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether final goods manufactured from the raw material imported has been exported or not, can be verified is concerned, as such, as observed herein above Section 149 of the Customs Act will not be applicable. Even otherwise, it is required to be noted that what is considered at the time of DEEC, the appropriate inquiry would be limited to the extent to satisfy the authority whether raw material which was imported has been used in manufacturing final product or not. So far as Advance Authorization Scheme is concerned, the appropriate authority is required to consider after holding appropriate inquiry that the raw material which was imported has only been used in the manufacture of final product and that final product has been actually exported. Based on the above decisions of the Hon'ble High courts it is clearly evident for any amendment under section 149 the proviso needs to be strictly interpreted and any amendment cannot be claimed in a routine manner and as a matter of right. The discretion vested in the Proper Officer to permit amendment in any document after the same has been presented in the Customs house. Though this discretion was to be exercised judiciously, but it was q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g officer. That itself is an order of assessment in such a situation. We are, therefore, not prepared to agree that there is no order of assessment in this case, and therefore, the limitation prescribed in Section 27 did not begin to run. Section 27 is emphatic in language. It says that an application for refund of duty shall be made before the expiry of six months from the date on which the duty was paid. In the face of this provision, the authorities under the Act, including the Government of India, had no option but to dismiss the appellant's application." 9. The Hon'ble Supreme Court in the case of Eicher Tractors Ltd. versus Commissioner of Customs, Mumbai, 2000 (122) E.L.T. 321 (S.C.) dated on 14-11-2000 observed that: "6. Under the Act customs duty is chargeable on goods. According to Section 14(1) of the Act, the assessment of duty is to be made on the Value of the goods. The value may be fixed by the Central Government under Section 14(2). Where the value is not so fixed the value has to be determined under Section 14(1). The value, according to Section 14(1), shall be deemed to be the price at which such or like goods are ordinarily sold, or offered for sale, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for customs purposes under the provisions of sub-rule (3)." 9. These exceptions are in expansion and explicatory of the special circumstances in Section 14(1) quoted earlier. It follows that unless the price actually paid for the particular transaction falls within the exceptions, the Customs authorities are bound to assess the duty on the transaction value. 12. Rule 4(1) speaks of the transaction value. Utilisation of the definite article indicates that what should be accepted as the value for the purpose of assessment to customs duty is the price actually paid for the particular transaction, unless of course the price is unacceptable for the reasons set out in Rule 4(2). "Payable" in the context of the language of Rule 4(1) must, therefore, be read as referring to "the particular transaction" and payability in respect of the transaction envisages a situation where payment of price may be deferred. If the phrase 'the transaction value' used in Rule 4 were not limited to the particular transaction then the other Rules which refer to other transactions and data would become redundant. 14. It is only when the transaction value under Rule 4 is rejected, then under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (iii) of the Explanation. (g) The proper officer, on a request made by the importer, has to furnish and intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to the imported goods. Thus, the proper officer has to record reasons in writing which have to be communicated when requested. (h) The importer has to be given opportunity of hearing before the proper officer finally decides the transactional value in terms of Rules 4 to 9 of the 2007 Rules. 11. In view of the above observations of the apex court, the changes to be brought about in valuation of goods is not just a simplicitor amendment, Section 14 of the Customs Act along with the Customs Valuation Rules clearly laid down the procedure for any assessment under this Specialized Act. Once an assessment is done, only on appeal, reassessment is possible and any demand/refund on account of reassessment on account of valuation or for any other reason has to be within the framework of laws as laid down under Section 28/27 of the Customs Act, 1962. Therefore Section 149 amendments cannot be read in isolation making these sections with regard to classification o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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