2025 (4) TMI 701 - AT - Customs

Importer wins appeal for exemption benefits under Section 149 amendment despite original self-assessment challenge

M/s Manik Sadhu Versus Commissioner of Customs (Port), Kolkata

CESTAT Kolkata allowed the appeal regarding denial of benefit under Notification No.30/2004-CE dated 09.07.2004. The appellant sought amendment of Bills ... Denial of benefit of Notification No.30/2004-CE dated 09.07.2004 - amendment of Bills of Entry under Section 149 of the Customs Act, 1962 - the self-assessment of the Bills of Entry at the time of clearance, not challenged - HELD THAT:- Admittedly, in this case, the appellant has not challenged the Bills of Entry, but they sought amendment under Section 149 of the Customs Act, 1962, which is very much impressed upon the observations made by the Hon’ble Apex Court in the case of ITC Ltd. [2019 (9) TMI 802 - SUPREME COURT (LB)], wherein the Hon’ble Apex Court held that the assessment order has to be modified under Section 128 of the Customs Act, 1962 or any other relied upon provisions of the Act i.e. Section 149 of the Customs Act, 1962. Admittedly, the appellant has claimed for modification of assessment under Section 149 of the Act, the same is available to the appellant. Therefore, the appellant is entitled for amendment in the Bills of Entry. The benefit of Notification was admitted by the adjudicating authority, but held that the same cannot be given to the appellant only because of the reason that they have not challenged the assessments of Bills of Entry. The issue has been examined by this Tribunal in the case of Artex Textile Private Limited [2023 (9) TMI 1268 - CESTAT AHMEDABAD], wherein this Tribunal observed that 'the appellant in principle entitle for exemption Notification as the condition of non availment of Cenvat Credit need not to be satisfied by the importer in respect of imported goods. The same has been clarified by the Central Board of Excise and Customs vide Circular No. 1005/12/2015-CX dated 21.07.2015.' Conclusion - The appellants are entitled for the benefit of Notification No.30/2004-CE dated 09.07.2004 for the imports made prior to 17.07.2015. Appeal allowed. ISSUES PRESENTED and CONSIDEREDThe core legal issues considered in this judgment are: Whether the appellant is entitled to amend the Bills of Entry under Section 149 of the Customs Act, 1962, to claim the benefit of Notification No.30/2004-CE dated 09.07.2004. Whether the appellant can claim the benefit of the exemption Notification No.30/2004-CE despite not challenging the self-assessment of the Bills of Entry at the time of clearance. Whether the exemption from Countervailing Duty (CVD) under Notification No.30/2004-CE is applicable to importers even if the conditions of non-availment of Cenvat Credit are not fulfilled.ISSUE-WISE DETAILED ANALYSIS1. Amendment of Bills of Entry under Section 149 of the Customs Act, 1962Relevant legal framework and precedents: The appellant sought an amendment of the Bills of Entry under Section 149 of the Customs Act, 1962, to avail the benefit of Notification No.30/2004-CE. The adjudicating authority and the Commissioner (Appeals) denied this, citing the Supreme Court decision in ITC Limited Vs. CCEx., which required challenging the assessment order under Section 128 of the Act.Court's interpretation and reasoning: The Court held that the appellant is entitled to amend the Bills of Entry under Section 149, as the notification was available in the statutory book and the appellant had filed a representation accordingly. The Court emphasized that the appellant's failure to challenge the self-assessment at the time of clearance does not preclude them from seeking amendment under Section 149.Key evidence and findings: The appellant did not claim the exemption at the time of clearance but later sought amendment under Section 149. The Court found that the amendment was permissible as per the legal framework.Application of law to facts: The Court applied Section 149 to allow the appellant to amend the Bills of Entry, aligning with the legal precedent that permits such amendments when the relevant notification is part of the statutory framework.Treatment of competing arguments: The Court distinguished the case from the ITC Limited precedent by focusing on the availability of the notification in the statutory book and the procedural aspect of seeking amendment rather than challenging the assessment.Conclusions: The appellant is entitled to amend the Bills of Entry under Section 149 to claim the exemption.2. Entitlement to Exemption under Notification No.30/2004-CERelevant legal framework and precedents: The exemption under Notification No.30/2004-CE provides relief from CVD, contingent upon non-availment of Cenvat Credit. The Tribunal's decision in Artex Textile Private Limited and the Supreme Court's ruling in SRF Ltd. were pivotal.Court's interpretation and reasoning: The Court found that the appellant is entitled to the exemption, as the condition of non-availment of Cenvat Credit does not apply to importers, as clarified by the Central Board of Excise and Customs Circular No.1005/12/2015-CX.Key evidence and findings: The Court referenced the Tribunal's decision in Artex Textile Private Limited, which aligned with the Supreme Court's judgment in SRF Ltd., affirming that the exemption applies to importers without the need to fulfill the Cenvat Credit condition.Application of law to facts: The Court applied the legal principles from the cited judgments and circulars to grant the exemption to the appellant for imports made prior to 17.07.2015.Treatment of competing arguments: The Court addressed the Revenue's reliance on the Madras High Court decision in Prashray Overseas Private Limited by highlighting the binding nature of the Supreme Court's interpretation and the subsequent clarifications from the Central Board of Excise and Customs.Conclusions: The appellant is entitled to the exemption under Notification No.30/2004-CE for the relevant period.SIGNIFICANT HOLDINGSThe Court established the following core principles: The amendment of Bills of Entry under Section 149 is permissible when the relevant notification is part of the statutory framework, even if the self-assessment was not challenged initially. The exemption from CVD under Notification No.30/2004-CE is applicable to importers without the condition of non-availment of Cenvat Credit, as clarified by the Supreme Court and the Central Board of Excise and Customs.Final determinations on each issue: The appellant is entitled to amend the Bills of Entry under Section 149 of the Customs Act, 1962. The appellant is entitled to the benefit of Notification No.30/2004-CE for imports made prior to 17.07.2015.The impugned order was set aside, and the appeal was allowed with consequential relief, if any. The operative part of the order was pronounced in the open court.