TMI Blog2022 (11) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... ucts, wastes and scrap - HELD THAT:- Unless or otherwise, Bill of Entry submitted by the petitioner with regard to the clearance of the goods from SEZ to DTA area, is modified/corrected, to which, the petitioner is entitled to by filing Application u/s 149, the petitioner would not be entitled to avail the benefit available under the Notification for exemption. Therefore, even assuming without admitting that, if the application filed by the petitioner for modification/correction of Bill of Entry was cancelled/rejected and the petitioner preferred any Appeal before the Appellate Authority, even then, the error committed by the petitioner while filing the Bill of Entry cannot be corrected, and the repondent-Department would proceed to ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the view that, in the light of the observations made in W.P. No. 4222 of 2020, wherein, the issue as to whether the petitioner is entitled to file application u/s 149 of C.A. Act seeking for correction/modification of the Bill of Entry is decided in favour of the petitioner, the Public Notice impugned in W.P. No. 4223 of 2020 has to be given a go by. Accordingly, W.P. No. 4223 of 2020 is also allowed and the impugned public notice is quashed. In the result, both the Writ Petitions are allowed. - THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY For the Petitioner : Mr. Hari Radhakrishnan For the Respondent-1 : Mr. Venkataswamy Babu Senior Panel Counsel For the Respondent-2 : Mr. A.P. Srinivas, Senior Standing Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication dated 27.01.2020, stated as per the Public Notice No. 88/2019, dated 18.10.2019, any modification of a self-assessed Bill of Entry is possible only by way of Appeal against the assessment made in the Bill of Entry before the Commissioner (Appeals) under Section 128 of the C.A. Act, 1962. Challenging the i) communication dated 27.01.2020 issued by the first respondent and ii) public notice No. 88/2019 dated 18.10.2019, issued by the second respondent, the present Writ Petitions are filed respectively. 4. Mr. Hari Radhakrishnan, learned counsel appearing for the petitioner would contend that in terms of Notification dated 16.05.2005, the petitioner is entitled to claim exemption of duty at 4% for clearance of the goods from Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of the Hon'ble Supreme Court, cited supra, has been clearly interpretted and held as follows:- ''''The question was answered adverse to the assessees stating that the applications for refund were not maintainable unless an order of self-assessment quantifying the duty had been the subject-matter of statutory remedy. Inter-alia, the Hon'ble Supreme Court states that such challenge may be by way of appeal under Section 128 or other relevant provisions of the Act. Paragraph 47 of the judgment is relevant in this context and is extracted below:- 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 that the claim f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odification in the Bill of Entry filed by the petitioner, so as to enable the petitioner to get their refund, to which, they are legally entitled to. 5. In response to the above submission, the learned Senior Standing Counsel for the respondents fairly admitted that the issue involved in the present Writ Petitions is squarely covered by the judgment/decision relied on by the learned counsel for the petitioner, which are referred to above. 6. Considered the submissions made by the learned counsel for the petitioner and the respondent and gone through the judgment/decision relied on by the learned counsel for the petitioner. 7. In the present case, it is seen that by virtue of Notification No. 45/2005-Cus. dated 16.05.2005, the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption. 7.2 Therefore, even assuming without admitting that, if the application filed by the petitioner for modification/correction of Bill of Entry was cancelled/rejected and the petitioner preferred any Appeal before the Appellate Authority, even then, the error committed by the petitioner while filing the Bill of Entry cannot be corrected, and the repondent-Department would proceed to assess, as if, the petitioner has not claim exemption. Therefore, for the purpose of getting exemption as per Notification dated 16.05.2005, it is necessary to get Bill of Entry modified/corrected by filing application under Section 149 of C.A. Act, and re-assessment has to be made by the Authorities concerned, in the event, the petitioner is entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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