2025 (8) TMI 16 - AT - Customs

CESTAT Allows Amendment of Bills of Entry Under Section 149 Without Provisional Assessment or Duty Paid Under Protest

Commissioner of Customs (Prev.), Jaipur Versus M/s. Trust Marketing

The CESTAT upheld the Commissioner (Appeals) decision allowing the assessee to amend bills of entry under section 149 of the Customs Act despite no ... Amendment of bills of entry under section 149 of the Customs Act, 1962 - no provisional assessment - duty was not paid under protest - applicant has not challenged the assessment in any court of law/appellant authority/tribunal - HELD THAT:- In ITC [2019 (9) TMI 802 - SUPREME COURT (LB)], the Supreme Court observed that the provisions of section 27 cannot be invoked in the absence of amendment or modification having been made in the Bills of Entry on the basis of which self-assessment was made. The Supreme Court further observed that refund proceedings are in the nature of execution proceedings and, therefore, the order of self-assessment is required to be followed unless modified/amended before the claim for refund is entertained under section 27. 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, based on documentary evidence existing at the time of clearance.Whether the limitation period under section 27 of the Customs Act, 1962 for refund claims applies to amendment applications under section 149.Whether reassessment under section 17(5) of the Customs Act, 1962 is applicable for amendment of BEs in the present facts.Whether an order of self-assessment can be modified only by appeal under section 128 or also by amendment under section 149 of the Customs Act.Whether refund claims under section 27 can be entertained without prior amendment or modification of the order of assessment or self-assessment. RULINGS / HOLDINGS: The Court held that amendment of BEs under section 149 of the Customs Act is permissible after final assessment and clearance of goods, provided the amendment is based on documentary evidence which was in existence at the time of clearance of goods. The proviso to section 149 explicitly permits such amendments 'except on the basis of documentary evidence which was in existence at the time the goods were cleared'.The limitation period of one year under section 27 for refund claims applies to the refund application itself, but section 149 does not prescribe any limitation period for amendment of BEs. Hence, amendment under section 149 can be sought without limitation, subject to conditions.The Court agreed with the department that reassessment under section 17(5) is not applicable for permitting amendment of BEs by the assessee; section 17(5) requires a speaking order on reassessment by the proper officer but does not empower amendment by the assessee under section 149.The Court affirmed that an order of self-assessment can be modified either by appeal under section 128 or by amendment under other relevant provisions such as section 149 or section 154 of the Customs Act, as clarified by the Supreme Court in ITC Ltd. vs. Commissioner of Central Excise.Refund claims under section 27 cannot be entertained unless the order of assessment or self-assessment is modified or amended 'in accordance with law by taking recourse to appropriate proceedings,' which includes amendment under section 149. The refund proceedings are 'in the nature of execution proceedings' and not assessment or reassessment proceedings. RATIONALE: The Court applied the statutory provisions of sections 149, 17(5), 27, and 128 of the Customs Act, 1962, alongside relevant notifications and conditions governing Additional Duty of Customs.The Court relied heavily on the Supreme Court judgment in ITC Ltd. vs. Commissioner of Central Excise, which clarified the necessity of amendment/modification of Bills of Entry before refund claims under section 27 and recognized amendment under section 149 as a valid mode of modification alongside appeals under section 128.Decisions of the Bombay High Court in Dimension Data India and the Telangana High Court in Sony India were followed, both of which upheld the permissibility of amendment under section 149 after final assessment, subject to documentary evidence existing at the time of clearance.The Court distinguished the role of section 17(5), emphasizing that it governs reassessment by the proper officer and does not confer power to the assessee to amend BEs.The Court rejected the department's contention that amendment under section 149 cannot be invoked post-final assessment without prior appeal under section 128, noting that the Supreme Court explicitly recognized multiple avenues for modification of assessment orders.The Court recognized that the assessing authority's failure to correctly determine duty at the time of clearance justifies allowing amendment under section 149 to prevent injustice to the importer.No dissent or doctrinal shift was noted; the judgment aligns with binding Supreme Court precedent and consistent High Court and Tribunal decisions.