9911796707
TMI Blog2022 (11) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bill of Entry No. 0002505 dated 17.02.2016, 001802 dated 05.02.2016 and 0002603 dated 10.02.2016 after extending the benefit of Notification No. 45/2005-Customs dated 16.05.2005. Insofar as Writ Petition No. 4223 of 2020 is concerned, the same is filed seeking to quash the public notice issued by the second respondent dated 18.10.2019. 2. Since the issue involved in both the Writ Petitions are interconnected and the parties herein are one and the same, both the Writ Petitions were heard together and disposed of vide this Common Order. 3. The petitioner is a Company, registered under the provisions of the Companies Act. The petitioner-Company is engaged in the business of non-agricultural intermediate products, wastes and scrap. In term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst respondent claiming 4% exemption of duty, but, the first respondent by the impugned order rejected the claim by stating that any modification of the self assessed Bills of Entry can be done only by way of Appeal, and that the said view is also confirmed by the Hon'ble Supreme Court in the case of ITC Ltd., Vs Commissioner of Central Excise, reported in 2019 (368) E.L.T. 216 S.C. 4.1 The learned counsel contended that the respondent-Department had totally misunderstood and misinterpreted the view expressed by the Hon'ble Supreme Court, in the case cited supra, since, what the Hon'ble Supreme Court has clearly held that, in the event, if there is any modification of the Bill of Entry, he is not prevented from filing any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of self assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act." 7. To this extent, Public Notice No. 88 of 2019 which states that 'no reassessment shall be allowed unless the order of assessment including self assessment is duly modified by way of appeal' is incorrect as it places a restriction on the mode of reassessment. No restrictions was envisaged by the Hon'ble Supreme Court that has made it clear that the modification could be by way of statutory appeal or under relevant provisions of the Act. To this extent, the stipulation in public no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of the notification dated 16.05.2005, the petitioner is entitled to claim the benefit of 4% exemption of duty, due to inadvertent error, the column, where, the petitioner is required to fill up the claim for availing such exemption, has been left out/wrongly filled up, as a result, the petitioner was assessed without providing any exemption that is available to them, in terms of the Notification dated 16.05.2005. Therefore, unless and until, the petitioner had amended or modified the Bill of Entry in terms of provisions of Section 149 of the C.A. Act, the petitioner is not entitled to make any claim seeking exemption which is available in terms of the notification dated 16.05.2005. If the petitioner fails to claim the said exemption av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the matter, this Court is of the view that the impugned order passed by the first respondent is unsustainable and the same is liable to be set aside. 8. Accordingly, the Writ Petition No. 4222 of 2020 is allowed, the impugned order dated 27.01.2020 is set aside and the first respondent is directed to consider the Modification Application filed by the petitioner dated 01.01.2020, and permit the petitioner to make corrections in the Bills of Entry and thereafter, re-assess the income of the petitioner, so as to enable the petitioner to claim refund, in terms of Notification No. 45/2005 Cus. Dated 16.05.2005, which the petitioner claimed vide Application dated 14.09.2016. 9. Insofar as Writ Petition No. 4223 of 2020 is concerned, wherein, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
