TMI Blog2024 (3) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... has been laid on the non-issuance of letter / communication in writing as specified under sec. 28(2) and it is the case of the appellant that it having not issued any such communication in writing, the payment made by it loses the characteristic of duty - it is found that a positive act followed the pre-notice consultation and hence, nothing can be looked beyond for anything. If the pleas urged is to be considered, then there should have been a communication to the least, indicating as to why payment as proposed / demanded was made, but no such things appear in the file. The appellant having acquiesced, no further action was felt necessary. It appears that the differential duty arose on account of mis-match with regard to the classification of the product imported. It is the case of the appellant that the correct classification was 8480.60. But there was no request made for rectification / re-assessment, since it is the settled position of law that since acceptance of Bill of Entry is considered as self-assessment per se, the importer if aggrieved by the same, has to seek for modification / rectification / re-assessment as held by the Hon'ble Supreme Court in the case of ITC L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 27(1)(a) of the Customs Act, 1962. The appellant also claimed to have filed a Chartered Accountant s certificate indicating that the incidence of duty had not been passed on. The Assistant Commissioner of Customs (Refunds) having considered the above application for refund vide the order dated 25.2.2019 did not entertain the importer s request for the reasons that (i) the differential duty paid by the importer was not under-protest, (ii) The importer did not file appeal against the order of Deputy Commissioner (RMS / PCA), (iii) The refund did not arise consequent to self-assessment but the same was raised by the Revenue which was accepted by the importer who also made the payment, (iv) The refund claim being premature was closed for want of any sustainable grounds. 4. It appears, the appellant approached the first appellate authority against the above rejection of refund claim by filing an appeal. But however, even the first appellate authority having upheld the rejection of the appellant s refund, the appellant has assailed the same in this appeal. 5. Shri Ramnath Prabhu, learned counsel appearing for the appellant contended as follows:- The rejection of refund was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962, the relevant portion of which is extracted herein below:- Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded (1) Where any duty has not been levied or has been short-levied or short-paid or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any willful mis-statement or suppression of facts, - (a) The proper officer shall, within two years from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; Provided that before issuing notice, the proper officer shall hold pre-notice consultation with the person chargeable with duty or interest in such manner as may be prescribed. (b) the person chargeable with the duty or interest, may pay before service of notice under clause (a) on the basis of (i) his own ascertainment of such duty; 0r (ii) the duty ascertained by the proper officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond for anything. If we were to consider the pleas urged, then there should have been a communication to the least, indicating as to why payment as proposed / demanded was made, but no such things appear in the file. The appellant having acquiesced, no further action was felt necessary. When we consider the scope and objective of the pre-notice consultation, the same is issued to avoid a possible litigation. So, when pre-notice consultation is issued, the notice could choose either to accept the proposal made therein, or not to accept in which event, the Revenue would invariably issue a Show Cause Notice, that cause of action is clearly missing here, for the Revenue to issue Show Cause Notice. That means to say, the Revenue was estopped from proceeding further in terms of section 28(1)(a) since the appellant accepted the short-payment of duty and made the payment as proposed / demanded. 10. We also consider the case of the appellant from one another angle. It appears that the differential duty arose on account of mis-match with regard to the classification of the product imported. It is the case of the appellant that the correct classification was 8480.60. But there was no requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to 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 re assessment proceedings at all. . . . . . . 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 for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order 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. 48. Resultantly, we find that the order(s) passed by Customs, Excise, and Service Tax Appellate Tribunal is to be u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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