2018 (9) TMI 1454

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....Bills of Entry No.   W.P.No.26826 of 2008 382018/22.01.07, 474338/02.06.07, 492234/26.06.07, 446176/24.04.07, 485811/18.06.07, 480138/09.06.07, 540020/28.08.07, 398439/14.02.07, 439437/16.04.07, 408997/03.03.07, 447863/26.04.07, 526195/09.08.07, 408366/03.03.07, 453074/04.05.07, 496260/02.07.07, 441015/18.04.07, 408917/03.03.07, 526191/09.08.07, 491477/26.06.07, 541360/29.08.07, 541093/29.08.07, 530469/16.08.07 and 453081/04.04.07   W.P.No.26827 of 2008 382463/23.01.07, 408994/03.03.07, 409001/03.03.07, 409076/03.03.07, 416560/13.03.07, 416563/13.03.07, 441250/18.04.07 and 447859/26.04.07 2. According to the petitioners' consignment of wall fans were wrongly assessed to 10% advelorem instead of 7.5% at the time of clear....

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....and unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal. The court further held that a refund claim is not an appeal proceeding. 8. In the present case the time for filing an appeal against the assessment in the Bills of Entry would have expired and therefore the petitioners made an application for reassessment of the respective bills of entry for re-classification under Section 149 read with Section 154 of the Customs Act, 1962. 9. The respondent's by their letters dated 6.11.2007 and 15.10.2007 had declined the request on the ground that neither the duty was paid "under protest" nor the assessments have been challenged and hence there is no scope for issuing a speaking order under section 17 o....

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....espective petitioners and Mr.A.P.Srinivas, the learned Central Government Standing Counsel for the respondents. 15. The learned counsel for the petitioners relied on the following decisions of the Supreme Court and high Courts in support of the above writ petition:- i)Anchor Pressings Pvt. Ltd., Vs. Commissioner of Income-Tax, U.P. and others 1987 (27) E.L.T. 590 (S.C.) ii)Indo Rama Synthetics (India) Ltd., Vs. Union of India 2002 (143) E.L.T. 299 (Del.) iii)Karnataka Power Corporation Ltd., Vs. Commissioner of Customs (Appeals), Chennai 2002 (143) E.L.T. 482 (S.C.) iv)Hero Cycles Ltd., Vs. Union of India 2009 (240) E.L.T. 490 (Bom.) v) Bansak Alloys and Metals Pvt. Ltd., Vs. Commissioner of Customs, Amritsar 2009 (240) E.L.T. 48....

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....rocedures prescribed. 17. The learned counsel for the petitioners submits that the mistake in adopting the correct classification for the purpose of assessment can be rectified under Section 149 read with Section 154 of the Customs Act, 1962. Section 149 of the Customs Act, 1962 a proper officer in his discretion may authorise any document to be presented. Section 149 of the Customs Act, 1962 reads as under:- "Amendment to 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 a shipping bill or bill of export shall be so authorised to be amended after t....

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....decisions cited by the petitioners have allowed modification of assessment under Section 149 of the Act. 22. In the light of the decisions cited by the learned counel for the petitioners, these writ petitions are to be partly allowed by directing the respondents to consider amendment to the subject of Bills of Entry. 23. The respondents shall give an opportunity to the petitioners to establish their case for re-classification of the imported wall fans on the strength of existing documents on the date of the import as per the proviso to Section 149 of the Customs Act, 1962. 24. If the classification proposed by the petitioners under subheading 8414 51 90 of the Customs Tariff Act, 1985 is applicable to imported wall fans, the respondents ....