2024 (10) TMI 907 - AT - Customs

Refund under Section 27 requires assessment modification under Section 128 or relevant provisions including Sections 149 and 154

M/s. Sunil Steels Versus The Commissioner of Customs-Cochin

CESTAT Bangalore held that refund under Section 27 of Customs Act, 1962 requires assessment modification under Section 128 or other relevant provisions ... Seeking refund of excess amount by filing a refund application or by seeking amendment in the bill of entry regarding the exemption Notification under the provisions of Section 149 or 154 of Customs Act, 1962 - HELD THAT:- It is well settled that refund under section 27 of Customs Act, 1962 can be made only if assessment is modified under Section 128 or under other relevant provisions of the Act. Any other provision cannot be limited to provisions of Section 17, 18, 28 & 128 of Customs Act, 1962 as submitted by Learned AR, but include other provisions like Section 149 for amendment of document or section 154 of the Customs Act, 1962 for correction of clerical error, etc. If review of the assessment is limited to Section 128 of the Act, other provisions like section 149 meant for amendment of document, section 154 for correction of clerical error and provisions of Section 28 of the Customs Act, 1962 to recover duty short paid by the importer will become redundant. Thus even if the bill of entry is self-assessed, importer can seek amendment of bill of entry under Section 149 of the Customs Act, 1962 and respondent has to consider such request in accordance with law. There is no request made before the adjudication authority initially to rectify the mistake and when the said request was rejected, appellant filed the appeal challenging the order on the ground that the adjudication authority ought to have corrected the omission as a clerical error under Section 154 of the Customs Act, 1962 and to reassess the duty by permitting amendment of bill of entry as sought by the appellant. Considering the above and in the absence of any request seeking amendment of bill of entry under Section 154 of the Customs Act, 1962, the issue is squarely covered by the judgment of the Hon’ble Supreme Court in the matter of ITC Ltd. [2019 (9) TMI 802 - SUPREME COURT], and adjudication authority has rightly rejected the refund claim. The Appellate authority has held that in the absence of any grievance on the part of the Appellant or speaking order from the proper officer, hands are tied and no ground for interference in terms of Section 128 of the Customs Act, 1962. However Appellate authority failed to appreciate that the impugned order was issued by proper officer, who is empowered to allow such corrections as per the provision of Section 149 of the Customs Act, 1962. No other objections were raised by the respondent to amend the bill of entry to avail the benefit of Notification No. 12/2012 instead of Notification No. 18/2012 both dated 17.03.2012. Appeal disposed off. Issues:1. Whether the Appellant can seek a refund of excess amount by filing a refund application or by seeking an amendment in the bill of entry regarding the exemption Notification under the provisions of Section 149 or 154 of Customs Act, 1962.Analysis:1. The Appellant imported polished Marble Slabs and filed a bill of entry availing the benefit of exemption Notification No.12/2012-CE dated 17.03.2012. However, a mistake was made in mentioning the Notification as 18/2012-CE, resulting in an excess duty payment of Rs. 1,86,239. The refund application was initially dismissed by the adjudication authority and the appellate authority, leading to the filing of Appeal No. C/23215/2014.2. The Appellant also sought an amendment of the Bill of Entry under Section 149 and 154 of the Customs Act, 1962, which was rejected by the Deputy Commissioner of Customs. Subsequent appeals were also dismissed, leading to the filing of Appeal No. C/23216/2014.3. The Appellant argued that the refund claims are maintainable and relied on case laws to support their position. The Authorized Representative contended that the appeals are not maintainable based on a Supreme Court judgment and that the case laws cited by the Appellant are distinguishable.4. The Tribunal considered the arguments and the Supreme Court judgment, emphasizing that a refund under Section 27 of the Customs Act, 1962 can only be made if the assessment is modified under Section 128 or other relevant provisions. The Tribunal highlighted the importance of provisions like Section 149 for amendment of documents and Section 154 for correction of clerical errors.5. The Tribunal concluded that Appeal No. C/23215/2014 was unsustainable as there was no request for amendment of the bill of entry under Section 154. However, Appeal No. C/23216/2014 was partially allowed, permitting the amendment of the bill of entry to claim the benefit of the correct Notification. The matter was remanded to the Adjudication authority for assessment in accordance with law.6. The Tribunal's decision was pronounced in open court on 03.09.2024.