TMI Blog2023 (12) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... It has also been brought to notice that the aforesaid order of the Tribunal has attained finality, as no appeal has been filed. Appeal dismissed. - HON BLE MS. BINU TAMTA , MEMBER ( JUDICIAL ) And HON BLE MS. HEMAMBIKA R. PRIYA , MEMBER ( TECHNICAL ) Shri S. K. Rahman , Authorized Representative for the Appellant Shri Rachit Jain Shri Ashwini Bhatia , Advocates for the Respondent ORDER HEMAMBIKA R. PRIYA The present appeal is filed by the Department to assail the Order-in-Appeal No. CCA/Customs/D-I/Import/NCH/612-615/2020- 21 dated 20.08.2020 passed by the Commissioner of Customs, New Delhi wherein refund claims filed by the respondent importer was allowed. 2. The brief facts of the case are that M/s Lava International Limited (hereinafter referred to as the respondent Importer) imported mobile phones with standard accessories for home consumption. Accordingly, 447 Bills of Entry were filed during the period May to July, 2014. [These Bills of Entry are covered by the impugned four orders]. These Bills of Entry were self-assessed under Section 17 classifying the goods under CTH 85171290 of the First schedule to the Customs Tariff Act, 1975 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel submitted that the issue relating to applicability of exemption notification with the conditions of nonavailment of Cenvat credit in relation to imported goods was settled by the Hon ble Supreme Court of India in the favour of importers in SRF Ltd. Vs. Commissioner of Customs, Chennai 2015 (318) ELT 607 (SC). Further, the Hon ble Supreme Court had also dismissed the Review Petition filed against the said judgment. After the above judgment was delivered, the Respondent filed letters dated 16.05.2015 and 05.06.2015 requesting the Customs for reassessment of the impugned Bills of Entry and sought refund of the differential CVD which had been paid during clearance. Reminder letter dated 21.12.2017 was issued requesting re-assessment of the impugned Bills of Entry. 5. These Bills of Entry were finally re-assessed in 2018, by the Deputy Commissioner on 12.3.2018/ 13.3.2018/25.4.2018 by manually/physically making the requisite changes in the duty liability on the face of the impugned Bills of Entry. Further, the learned Counsel contended that this re-assessment had been accepted by the Customs authorities as no appeal was filed by the department against the said re-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry were manually re-assessed in March-April 2018, following which the respondent filed a formal refund application in the months of March-June 2018. 8. The learned Counsel submitted that Bills of Entry are either amended under Section 149 or re-assessed under Section 17 and consequential refund is granted. He relied on the following cases in support of his contention: (i) Neyveli Lignite Corporation India Limited Vs.Commissioner of Customs 2022 (4) TMI 1374 Madras High Court. (ii) Sinochem India Company Pvt. Ltd. Vs. Union of India ORS and Hindustan unilever Ltd. Vs. The Union of India ORS 2021 (9) TMI 869 Bombay High Court. (iii) Principal Commissioner of Customs, New Delhi (Import) Vs. Vivo Mobile India Pvt. Ltd. 2021 (9) TMI 646 CESTAT New Delhi. (iv) Brightpoint India Pvt. Ltd. Vs. Commissioner of Customs, Mumbai (Air Cargo Import) 2021 (11) TMI 285 CESTAT Mumbai. (v) Kirloskar Ferrous Industries Ltd. Vs. Commissioner of Customs, Mangalore 2021 (4) TMI 1086 CESTAT Bangalore. (vi) Calison Fibres Pvt. Ltd. Vs. Commissioner of Customs (Import), Nhava Sheva 2019 (7) TMI 1060 CESTAT Mumbai. 9. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instances of manual filing and processing of Bills of entry at several EDI locations in their fiftieth report. 12. The learned Authorized Representative contended that as per the Supreme Court judgment on ITC, to claim the benefit of S. No. 263A of Notification No. 12/2012-CE dated 17.03.2012 the respondent importer should have appealed against the self assessment suo moto before the Commissioner (Appeals). Once self assessment has been done and out of charge has been given, the officer does not have power to recall the Bill of Entry and reassess it to extend the benefit of notification. The learned Authorized Representative contended that the doctrine of functus officio holds that once an assessment had been done, the importer had to file an appeal only and the Customs officer lacked the power to re-assess the Bill of Entry. This principle was well established in Customs Act, 1962 and had been upheld in catena of judgments. 13. The learned Authorized Representative further contended that as per Section 27(1) of Customs Act, 1962, the time limitation for filing any refund is from relevant date of payment of duty. In the instant case, the time lines were that the Bills of Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o longer res integra. The Principal Bench of this Tribunal in the respondent importer s own case; Principal Commissioner of Customs, ACC (Import), New Delhi Vs. Lava International Ltd. [2023) 4 Centax 322 (Tri.-Del.) had considered these two issues in detail and held as under: 11. It transpires that the respondent had earlier filed Bills of Entry in respect of the imported mobile phones and parts and accessories of mobile phones but did not claim the benefit of the Notifications under which a manufacturer is given an option to pay lesser rate of duty subject to fulfilment of certain conditions. Subsequently, in view of the decision of the Supreme Court in SRF regarding the conditions attached to the Notification, the Bills of Entry were amended in 2018 by the Deputy Commissioner, which order attained finality as no appeal was filed by the department to assail this order. Refund applications filed by the respondent were, however, rejected by the Assistant Commissioner for the reason that not only were they time barred, but otherwise also the respondent should have filed appeals against the assessment order rather than seeking amendment in view of the decision of the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amendments made by Finance Act, 2011 and after the amendments, and observed that there is no difference even after the amendments as selfassessment is also an assessment. 14. It needs to be noted that in Escorts Ltd. v. Union of India Ors 2002-TIOL-2706-SC/1998 (97) E.L.T. 211 (S.C.), the issue that had arisen for consideration before the Supreme Court was regarding the Bills of Entry classifying the imported goods under a particular tariff item and payment of duty thereon. The Supreme Court held that in such a case signing the Bills of Entry itself amounted to passing an order of assessment and, therefore, an application seeking refund on the ground that the imported goods fell under a different tariff item attracting lower rate of duty, should be filed within six months after the payment of duty. The Supreme Court, therefore, held that the signature made in the Bills of Entry was an order of assessment of the assessing officer. 15. The Supreme Court, thereafter, in ITC observed that the provisions relating to refund were more or less in the nature of execution proceedings and it would not be open to an authority, while processing a refund application, to make a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals 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 reassessment. The relevant portions of section 17 are reproduced below: 17. Assessment of duty. - (1) An importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, self-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the entries made under section 46 or section 50 and the self-assessment of goods referred to in sub-section (1) and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary: Provided that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria. (3) For the purposes of verification under sub-section (2), the proper offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justment 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 Fund. 19. Section 149 of the Customs Act deals with amendment of documents and is reproduced below: 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 customs house to be amended 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful 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 Entry is clearly permissible even in a situation where the goods are cleared for home consumption. The only condition is that in such a case, the amendment shall be allowed only on the basis of the documentary evidence which was in existence at the time of clearance of the goods. 19. This bring us to section 154 of the Customs Act which deals with correction, clerical errors, etc. It says that clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under the Customs Act or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 modified the order remains on record holding the field and on that basis no refund can be claimed but the moot point is Supreme Court has not confined modification of the order through the mechanism of section 128 only. Supreme Court has clarified that such modification can be done under other relevant provisions of the Customs Act also which would include section 149 and section 154 of the Customs Act. 28. Thus, in view of the aforesaid decisions of the Bombay High Court in Dimension Data India and the Telangana High Court in Sony India, the respondent could take recourse to appropriate proceedings, including the provisions of section 149 or 154 of the Customs Act for either seeking am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court that the refund was within time from the date the rectification was carried out and limitation was not to be counted from the date of assessment. This decision has been affirmed by the Supreme Court in 2000 (121) E.L.T. A139 (S.C.). The Commissioner (Appeals) as also relied on the decision of the Tribunal in Commissioner of Cus. (Import) v. Indian Farmers Fertiliser Co-Op. Ltd. 2008 (230) E.L.T. 667 (Tri.-Mumbai), which decision relied upon the decision of the Bombay High Court in Keshari Steels. 32. The decision of the Bombay High Court in Keshari Steels and the decision of the Tribunal in Indian Farmers were considered by the Bombay High Court in Commissioner of Cus. (Import) v. Indian Farmers Fertiliser Co-Op. Ltd.2009 (243) E.L.T. 687 (Bom.) and it was held that: 2. Vide order dated 13-12-2001, the assessing officer rectified the mistake by modifying the assessment order and holding that the goods were assessable at the rate of 5%, but rejected claim as being time-barred under the provisions of Section 27 of the Customs Act, 1962. The tribunal relying upon the judgment of this Court in Keshari Steels v. Collector of Customs, Bombay [2000 (115) E.L.T. 320 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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