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TMI Blog2023 (12) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... riod 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. Additional Customs Duty also called CVD at the rate of 6% / 12.50% as leviable under Section 3(1) of the Customs Tariff Act read with Notification No. 12/2012-CE dated 17.03.2012 was paid. The Respondent importer did not claim exemption under Sl. No. 263A of the notification and had self-assessed CVD @ 6% / 12.50%. 3. However, based on a subsequent order of the Supreme Court in SRF Limited Vs. Commissioner of Customs, the Respondent importer filed the refund claim for differential CVD, along with manually reassessed Bills of Entry, wherein CVD was leviable @ 1%. The details of four refund applications are as per table below:- Sl. No. Date of filing refund claim Order in Original (OIOs) No./Date Bill of Entry No. Amount of Refund involved (in Rs.) 1. 26.04.2018 490/AT/2018/18.06.2018 111 9,90,55,214 2. 26.03.2018 129/AKP/2018/27.04.2018 106 9,85,92,161 3. 04.05.2018 492/AT/2018/18.06.2018 110 8,61,48,176 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Originals. 6. At the outset, the learned Counsel submitted that this issue was no longer res-integra as the identical issue had been decided in favour of the respondent in its own case in Final Order No. 50112- 50117/2023. Hence all the four appeals are liable to be dismissed. The learned Counsel further stated that the undisputed facts were that the respondent had sought re-assessment vide letters dated 16.05.2015 and 05.06.2015 post SRF Limited decision of Supreme Court. The impugned Bills of Entry were re-assessed in the year 2018. Even though the Department had issued a corrigendum to change the words "re-assessment" to "amendment under Section 149" the same would amount to re-assessment/modification of Bills of Entry, in accordance with the ITC Limited decision. Consequently, refund had been claimed post such amendment under Section 149 of the Customs Act. 7. The learned Counsel submitted that the respondent had correctly claimed refund of duty paid and such refund was in consonance with the provisions of Customs Act and the decision in ITC Limited. As per the said decision, the provisions under Section 27 cannot be invoked in the absence of amendment or modification havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il, 2018 and the refund applications were filed in March-June, 2018. Therefore, the refund applications in the instant case were within limitation and not time barred. Hence the aforesaid appeals are liable to be dismissed. 10. The learned Authorized Representative submitted that the self assessed Bills of Entry pertaining to the year 2014 were incorrectly re-assessed on 12.3.2018, 13.03.2018 and 25.04.2018, which was after four years from the date of Bill of Entry, or three years of the SRF judgment. He contended that the officers had realized their mistake and subsequently termed it as "amendment under Section 149" on 30.11.2018, whereas the refunds were sanctioned on 27.04.2018 and 18.06.2018. He contended that the refunds had been sanctioned on wrong re-assessments and hence the refund orders are not legal and proper. The learned Authorized Representative further submitted that the departmental appeals were against the impugned order because an error/mistake had been committed by the officer which had revenue implication to the tune of Rs.38.36 Crore. He submitted that the "re-assessment" later called as "amendment" as carried out by the officer was not legal and proper. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arred by four years. The refund was sanctioned on the basis that the "date of re-assessment was 12.03.2018, and 13.3.2018, 18.3.2018 and 25.04.2018 which within one year from the date of re-assessment". However, on 30.11.2018 (after 8 months) a letter was issued substituting the word "re-assessment" with "amendment under Section 149". Thus the refund sanction orders were a bundle of errors. The respondent did not pay duty under protest as stipulated in second proviso of Section 27 of the Customs Act. The learned Authorized Representative stated that the importer had taken advantage of Section 149 wherein no time limit had been prescribed. 14. He further submitted that the importer cannot take benefit S.No. 263A of Notification No. 12/2012-CE dated 17.03.2012 as condition 16 says, "if no credit is taken in respect of inputs or capital goods used in manufacture of goods." Credit taken would arise only when central excise duty is paid on the inputs or capital goods. In the case of domestic supply, the duty paid on inputs are supplied with invoice on which Cenvat credit can be taken. However, in cases of import, no central excise duty is paid on inputs or capital goods used in manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had attained finality. 12. Two issues would, therefore, have to be examined in this appeal, namely, as to whether refund could have been claimed by the respondent as the Bills of Entry were amended under section 149 of the Customs Act and whether the refund claims filed by the respondent were barred by time. 13. In regard to the first issue much emphasis has been placed by the learned special counsel appearing for the department on the decision of the Supreme Court in ITC. The issue involved before the Supreme Court in all the Civil Appeals was whether, in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty can be entertained. The Bench of the Tribunal at Kolkata had opined that unless the order of assessment is appealed, no refund application against the assessed duty can be entertained. On the other hand, the Delhi High Court had opined that when there is no assessment order for being challenged in appeal, because there is no contest or lis and hence no adversarial adjudication, a refund application can be maintained even if appeals are not filed against the assessed bills of entry. The Madras High Court had al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or reassessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, reassessment is not permitted nor conditions of exemption can be adjudicated. Reassessment 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 reassessment 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. ** ** ** 47. When we consider the overall effect of the provisions prior to amendment and post amendment under Finance Act, 2011, we are of the opinion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reassessment 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 reassessment in writing, the proper officer shall pass a speaking order on the reassessment, within fifteen days from the date of reassessment of the bill of entry or the shipping bill, as the case may be." 18. Section 27 of the Customs Act deals with claim for refund of duty and the portion of this section relevant for the purposes of these appeals is reproduced below: "27. Claim for refund of duty (1) Any person claiming refund of any duty or interest,- (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be." 21. In paragraph 44 of the judgment of the Supreme Court in ITC, which has been reproduced in paragraph 16 of this order, the Supreme Court observed that the provisions of section 27 cannot be invoked in the absence of amendment or modification having been made in the Bills of Entry on the basis of which self-assessment was made. The Supreme Court further observed that refund proceedings are in the nature of execution proceedings and, therefore, the order of selfassessment is required to be followed unless modified/amended before the claim for refund is entertained under section 27. In this connection, the Supreme Court relied upon the decision of the Supreme Court in Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) 2004 (172) E.L.T. 145 (S.C.)/2004 taxmann.com 347 (SC). 22. The Supreme Court ultimately observed in paragraph 47 of the judgment that the overall effect of the provisions of section 27 of the Customs Act, both prior to the amendment and post amendment, is that the claim for refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical or arithmetical mistakes or errors arising in any decision or order due to any accidental slip or omission at any time which would include an order of self-assessment post out of charge. 21. Having noticed and analysed the relevant legal provisions, we may now turn to the decision of the Supreme Court in ITC Ltd. v. Commissioner of Central Excise, Kolkata IV (supra). The question which arose before the Supreme Court was whether in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty could be entertained. 22.1. From the question itself, it is clear that the issue before the Supreme Court was not invocation of the power of reassessment under section 17(4) or amendment of documents under section 149 or correction of clerical mistakes or errors in the order of self-assessment made under section 17(4) by exercising power under section 154 vis-à-vis challenging an order of assessment in appeal. The issue considered by the Supreme Court was whether in the absence of any challenge to an order of assessment in appeal, any refund application against the assessed duty could be entertained. In that context Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Commissioner (Appeals) and nor are we inclined to accept this plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 department in the six appeals, therefore, also stand rejected." 17. It has also been brought to o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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