2025 (7) TMI 1724 - AT - Customs

Amendment of Bills of Entry Allowed Under Section 149, Not Section 17(5); Exemption Denied Due to CENVAT Condition

Commissioner of Customs (Prev.), Jaipur Versus M/s. Akshar Telecom Pvt. Ltd.

The CESTAT upheld that amendment of Bills of Entry under section 149 of the Customs Act is permissible, rejecting the department's contention that section ... Amendment of bills of entry under provisions of sections 149 and 17(5) of the Customs Act, 1962 - applicant has not challenged the assessment - no provisional assessment - duty was not paid under protest - HELD THAT:- The Supreme Court, in the context of import of Nylon Filament Yarn of 210 deniers, examined a similar Condition No. 20 in SRF Ltd. vs. Commissioner of Customs, Chennai (SC) [2015 (4) TMI 561 - SUPREME COURT]. The appellant had claimed nil rate of Additional Duty by relying upon a Notification dated 01.03.2002. The Deputy Commissioner of Customs held that SRF Ltd. would not be entitled to exemption from payment of Additional Duty since it did not fulfill Condition No. 20 of the said the Notification, which is to the effect that the importer should not have availed credit under rule 3 or rule 11 of the CENVAT Rules in respect of the capital goods used for the manufacture of these goods. The admitted position was that such CENVAT credit was not availed by SRF Ltd. The Tribunal held that when the credit under the CENVAT Rules was not admissible, the question of fulfilling the aforesaid condition did not arise and, therefore, as Condition No. 20 was not satisfied SRF Ltd could not claim nil rate of Additional Duty. Revenue is justified in contending that amendment in the Bills of Entry cannot be made under section 17(5) of the Customs Act - Section 17(5) of the Customs Act only requires a speaking order to be issued if the proper officer re-assesses the Bills of Entry under section 17(4) of the Customs Act contrary to self-assessment. It has nothing to do with permitting amendment of any document by the assessee under section 149 of the Customs Act. The process of assessment under section 17 of the Customs Act comes to an end once an order clearing the goods for home consumption is given by the proper officer. This, however, would not prevent an assessee from seeking amendment of a document under section 149 of the Customs Act. The Commissioner (Appeals) has followed the decisions of the Bombay High Court in Dimension Data India [2021 (1) TMI 1042 - BOMBAY HIGH COURT] and the Telangana High Court in Sony India [2021 (8) TMI 622 - TELANGANA HIGH COURT] to arrive at a conclusion that Trust Marketing can file an application section 149 of the Customs Act for seeking amendment in the 180 Bills of Entry filed during the period from February, 2014 to October, 2014. These two judgments of the Bombay High Court and the Telangana High Court have been followed by this Tribunal in Vivo Mobile [2021 (9) TMI 646 - CESTAT NEW DELHI] and Ingram Micro India [2024 (3) TMI 460 - CESTAT NEW DELHI]. There is, therefore, no error in the order passed by the Commissioner (Appeals). The appeal filed by the department, therefore, deserves to be dismissed and is dismissed. ISSUES: Whether amendment of Bills of Entry (BEs) under section 149 of the Customs Act, 1962 is permissible after final assessment and clearance of goods for home consumption.Whether an assessee can claim refund under section 27 of the Customs Act without prior amendment or modification of the self-assessed Bill of Entry.Whether amendment under section 149 can be invoked as an alternative or supplement to appeal under section 128 for modification of assessment orders.Whether reassessment under section 17(5) of the Customs Act applies to amendment of Bills of Entry for refund claims.Interpretation and applicability of conditions in relevant Notifications (e.g., Condition No. 16 of Notification No. 12/2012-CE) in context of Additional Duty of Customs and entitlement to concessional rates. RULINGS / HOLDINGS: Amendment of Bills of Entry under section 149 is permissible after final assessment and clearance of goods, provided that such amendment is based on 'documentary evidence which was in existence at the time the goods were cleared, deposited or exported'.Refund claims under section 27 cannot be entertained unless the order of assessment or self-assessment is modified 'in accordance with law by taking recourse to appropriate proceedings,' which include amendment under section 149 or appeal under section 128.The Supreme Court has clarified that modification of an assessment order can be effected either under section 128 or 'under other relevant provisions' of the Customs Act, including section 149; hence, amendment under section 149 is a valid remedy and not barred by the existence of section 128.Reassessment under section 17(5) of the Customs Act does not apply to amendments of Bills of Entry sought by the assessee for refund purposes; section 17(5) requires a speaking order on reassessment but does not empower amendment of documents by the assessee.The entitlement to concessional Additional Duty rate under Notification No. 12/2012-CE (S.No. 263A(ii)) with Condition No. 16 is upheld, following the Supreme Court's reasoning in SRF Ltd. that the condition is satisfied if no CENVAT credit was taken, entitling the importer to reduced duty rate. RATIONALE: The Court relied on the statutory framework of the Customs Act, particularly sections 149 (Amendment of documents), 27 (Claim for refund), 17(4) and 17(5) (Assessment and reassessment), and 128 (Appeal against orders). Section 149 vests discretion in the proper officer to allow amendments post-clearance based on pre-existing documentary evidence.Judicial precedents, including the Supreme Court judgment in ITC Ltd. vs. Commissioner of Central Excise, clarified that refund claims under section 27 are contingent upon prior modification of the assessment order, which can be achieved through appeal under section 128 or amendment under section 149 or 154, thereby recognizing multiple procedural avenues for correction.High Court decisions in Dimension Data India and Sony India were pivotal in interpreting section 149 as an additional remedy for amendment of Bills of Entry, rejecting the argument that only appeal under section 128 is permissible. These courts emphasized the discretionary nature of section 149 and absence of time limits for amendment.The Tribunal's decisions in Vivo Mobile and Ingram Micro India further affirmed the availability of section 149 for amendment applications, aligning with the High Courts and Supreme Court's interpretation.The Court distinguished the scope of section 17(5), clarifying that it pertains to speaking orders on reassessment by the proper officer and does not authorize amendment applications by the assessee, thus limiting its applicability in refund-related amendments.The reasoning in SRF Ltd. was applied to uphold entitlement to concessional duty rates where the relevant condition (non-availed CENVAT credit) was met, reinforcing the principle that the duty quantification simulates hypothetical domestic manufacture.No dissent or doctrinal shift was indicated; the judgment follows established legal principles and consistent judicial interpretations.