2019 (11) TMI 71

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..../17.10.2011 & 5082095/ 02.11.2011, stating as follows: "10. In view of the aforesaid facts and circumstances and relying on the aforesaid decision, I hold that appellants cannot challenge their self assessment before the Commissioner appeals as it is outside the ambit of section 128 of the Customs Act, 1962." 2.1 Appellants had filed two Bill of Entries No 4941613 dated 16.12.2011 and 02.11.2011. The goods imported were self assessed by the appellant and CVD assessed and paid on the basis of MRP. Subsequent to the clearance of the goods so self assessed, they realized that they had paid the duty in excess of actual payable for the reason that while making the assessment they had taken the MRP/ sq mtr instead of MRP/ Box. 2.2 ....

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....nce Act, 2011, 08.04.2011, the third proviso was inserted in Section 47 providing that out of charge i.e. permitting clearance of goods for home consumption under Section 47 of Customs Act, 1962 made electronically is also an order. Such order made electronically also signifies approval of assessing officer and hence it is also an order of assessment. • Larger Bench of Tribunal has in case of Arvind Exports [2001 (130) ELT 54 (T-LB)] held that assessing officer allowing clearance of goods for home consumption under section 47 is an order and such order cannot be reviewed or altered by the assessing officer, therefore, if such assessment is to be varied, it should be challenged before the appellate authority. • The ....

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....ssment is an order of assessment as per section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self¬assessment is not found to be satisfactory, an order of re-assessment has to be passed under section 17(4). Section 128 has not provided for an appeal against a speaking order but against "any order" which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra). 44. The provisions under sectio....

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....al order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra). 45.Reliance was also placed on a decision of Rajasthan High Court with respect to service tax in Central Office Mewar Palace Org. v. Union of India 2008 (12) STR 545 (Raj.). In view of the aforesaid discussion, we are not inclined to accept the reasoning adopted by the High Court, that too is also not under the provisions of the Customs Act. 46.The decision in Intex Technologies (India) Ltd. v. Union of India has followed Micromax (supra). The reasoning employed by the High Courts of Delhi and Madras does not appear to be sound. The scope of the provisions of refund under Sec....