TMI Blog2004 (8) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... cember 1995 and May, 1996. The goods were assessed on the basis of the invoice price and duty paid accordingly. Subsequent to clearance of the goods against such payment of duty, the appellants negotiated with their supplier and obtained reduction of price of such goods and the latter issued credit note to the former for the differential price (difference between the price indicated in the invoice and the reduced price). The refund claims in question, which were based on these credit notes, were filed for the differential duty on the differential value of the goods. These claims have been rejected. Hence these appeals. 2. Heard both sides. Ld. Counsel submitted that the original authority and the first appellate authority had failed to appreciate the fact that the post-importation price reduction was in terms of a pre-existing contract. The purchase order placed on the foreign supplier by the appellants for each import contained a specific provision for price variation and the relevant credit note was issued in respect of the differential price consequential to the price reduction agreed to between the appellants and the supplier subsequent to clearance of the goods. Counsel argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim for duty paid on imported goods as assessed on the relevant Bill of Entry was not maintainable where the assessment had not been challenged. In S. Kumars, Priya Holdings and HCL Perot Systems (supra), the Tribunal followed the Supreme Court's ruling in CCE v. Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 (S.C.). The appeal filed by M/s. HCL Perot Systems Ltd. was dismissed by the Supreme Court [2004 (165) E.L.T. A77]. Ld. JCDR also relied on the Tribunal's decision in Birla VXL Ltd. v. CC. In 2002 (145) E.L.T. 614 (Tri-Mum.) in support of his submission that, where the price of imported goods had been reduced after importation and clearance of the goods, the reduced price was not a price contemplated in Section 14 of the Customs Act. An endeavour was also made to distinguish Karnataka Power Corporation case. In this case, the assessee had claimed reclassification and consequential reassessment of certain imported goods. They also claimed consequential refund of duty under Section 27 of the Customs Act. The Assistant Collector, Collector (Appeals) and the Tribunal had rejected the refund claim on the ground that the assessee had not claimed reclassification of the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of posterior evidence furnished by the importer after clearance of the goods. Ld. JCDR has particularly relied on the proviso to Section 149 of the Customs Act, which reads as under : "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 custom house, to be amended : Provided that no amendment of a Bill of Entry or 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 which was in existence at the time the goods were cleared, deposited or exported, as the case may be." JCDR has submitted that any amendment of Bill of Entry after the imported goods have been cleared for home consumption or deposited in Warehouse is not permissible except on the basis of documentary evidence which was in existence at the time of clearance of the goods or deposit in Warehouse, as the case may be. The reduced prices which resulted from subsequent negotiations between the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t duty was not liable to be refunded to them on the basis of credit notes issued to them by their supplier subsequent to clearance of the goods for home consumption. This is because the above assessments had already become final and binding on the appellants. The assessment of a Bill of Entry is appealable according to the Tribunal's decision in J.M. Industries (supra), Priya Holdings (supra) and HCL Perot Systems (supra). Where such assessment has not been challenged in appeal, it is not open to the assessee to challenge it indirectly by filing a refund claim under Section 27 of the Customs Act. The contra view taken in Hindustan Petroleum Corporation case (supra) is not good law as it is against the view taken by the Apex Court. In the case of Flock (India) Pvt. Ltd. (supra), it was held by the Apex Court that, where an appealable order under the Central Excise Act/Rules was not challenged by the assessee, it was not open to them to question the correctness of the order indirectly by filing a refund claim under Section 11B of the Act. This ruling has been consistently applied by this Tribunal to refund claims under Section 27 of the Customs Act also. For instance, in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h we have already mentioned. The binding case laws on the issue can be had from HCL Perot Systems, Motilal Dulichand, Super Cassettes Industries etc., (supra). It is to the effect that assessment of a Bill of Entry is an appealable proceedings and the same cannot be challenged through refund claim under Section 27 of the Customs Act. 8.In the instant case, the assessments of the Bills of Entry had not been appealed against by the assessee and the same became final and binding on them. It was not open to them under the Customs Act to challenge the assessments through refund claims filed under Section 27 of the Act. It has been argued to the contra by ld. Counsel relying on the Supreme Court's decision in Karnataka Power Corporation (supra) wherein the Court remanded the case to the original authority for fresh decision on the assessee's claim for reclassification of the imported goods and consequential refund of customs duty. In that case, the claim for reclassification was, obviously, based on materials available at the time of import, whereas, in the instant case, the appellants, in their refund applications, claimed revaluation of the goods on the basis of post-importation redu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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