TaxTMI 
TaxTMI 
2019 (9) TMI 29
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....t of Rs. 15,71,430/- as refund. This order of the Assistant Commissioner was challenged by the Revenue before the First Appellate Authority who vide the impugned order dated 31.12.2018 allowed the Revenue's appeal and set aside the order-in-original. The department's ground for appeal before the Commissioner (Appeals) was that the Bill of Entry has been finally assessed and in terms of the judgment of the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd., [2004 (172) ELT 145 - SC], the application for refund of customs duty is not maintainable if the duty was paid in pursuance of an order of assessment which was not challenged or set aside by a superior authority. In other words, once an order of assessment is issued and is not challenged, no refund can be claimed because it would amount to modifying the order of assessment by the officer sanctioning the refund. This was reiterated by the Board in the Board's Circular 24/2004-CUS dated 18.03.2004. The First Appellate Authority set aside the order of the lower authority accepting this argument of the department and did not agree with the subsequent judgments of the Hon'ble High Court of Madras in the case of Micromax I....
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....ssioner of Customs- (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the expiry of six months, AFTER FINANCE ACT, 2011 SECTION 17. Assessment of duty. (1) An importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, self-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the self-assessment of such goods and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. (3) For verification of self-assessment under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4) Where it i....
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.... the Customs EDI system based on the declaration made by the importer and the Risk Management System. During that period, based on the declaration made by the importers, in a large number of cases, the system accepted the declaration and completed the assessment without the officer having any opportunity to pass an assessment order as was required under Section 17 during the relevant period. The question whether in such cases the ratio of Priya Blue Industries (supra) applies or otherwise was examined by the Hon'ble High Court of Delhi in the case of Aman Medical Products [2010 (250) ELT 30 - Del] and it has been held that as there is no assessment order by the officer there is nothing to challenge before the higher authority and therefore the importer is entitled to refund without challenging the assessment order. He would further submit that in the case of Micromax Informatics Ltd., [2017 (358) ELT 38-Mad] the case pertained to amended provisions of Section 17 and Section 27 and Hon'ble High Court of Madras has held that in the light of the amended provisions of Section 17 and Section 27 an importer can claim refund without challenging his own self assessment of the Bill of Entry....
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.... the officers to assess the duty in every bill of entry, in many cases, Customs EDI system of the department allowed clearances of goods based on the declarations made by the importer. In fact, the bill of entry would never come to the notice of the assessing officer and therefore it was impossible for him to discharge his duties under Section 17. Therefore, if any declaration is done wrongly, the same gets cleared accordingly. The question for the Hon'ble High Court of Delhi in the case of Aman Medical Products (supra) was in such cases whether the importer needs to challenge the assessment order to claim the refund. The Hon'ble High Court of Delhi has observed that in such cases there is no order of assessment at all and therefore there is nothing which they can challenge. Accordingly, the refund can be granted to the appellant without challenging the order of assessment, which, in any case, does exist at all. In that context, the Hon'ble High Court of Delhi distinguished this case from the case of Priya Blue Industries (supra). 8. Subsequently, the law has been brought in consonance with the Customs EDI system and the responsibility for assessment has been shifted from the of....