TaxTMI 
TaxTMI 
2021 (9) TMI 646
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....33/- and Rs. 2,92,96,394/-. It needs to be noted that though the Deputy Commissioner had by said order dated 23 January, 2017 sanctioned the aforesaid refund amount but a direction was given that this amount should be credited to the Consumer Welfare Fund in terms of section 27(2) of the Customs Act. 2. To appreciate the reasons as to why the applications were filed by Vivo Mobile to claim refund, it would be necessary to state the relevant facts. 3. Vivo Mobile, which is a respondent in both the appeals, was during the relevant period engaged in import and distribution of mobile phones and its accessories in India. The relevant period in the first appeal is from December 15, 2014 to March 24, 2015 and from May 30, 2015 to June 6, 2015 in the second appeal. It paid the Additional Duty of Customs at the rate of 6% up to February 2015 and thereafter, at the rate of 12.5% under section 3(1) of the Customs Tariff Act 1975 [Tariff Act] on the 12 bills of entry. However, in terms of a notification dated 17 March 2012, the Additional Duty was leviable at 1% under the entry at serial 263A for importing mobile phones, provided condition no. 16 was satisfied. Condition no. 16 provides ....
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....und of the excess Additional Duty that was paid by it. 6. On scrutiny of the documents submitted by Vivo Mobile with the refund claims, it was found by the Department that various documents, including re-assessment of bills of entry in respect of the aforesaid refund amount had not been filed. Accordingly, a deficiency memorandum dated 28 January 2016 was issued to clarify the position. Vivo Mobile responded to the deficiency memo and pointed out that the refund applications filed by it be considered as a request for re-assessment of the bills of entry since "the filing of the refund application ipso facto means and implies that they are seeking re-assessment of all the impugned bills of entry". It was further stated that when the goods were allowed to be cleared, the valuation aspect was examined by the proper officer and the officer competent to decide the refund application had a concurrent jurisdiction. Thus, it was pleaded that the refund claim itself should be treated as a request for re-assessment of the bills of entry, in view of the decision of the Supreme Court in Karnataka Power Ltd vs Commissioner of Customs (Appeals) [2002 (142) ELT 482 (SC)]. 7. The Deputy Commi....
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.... had failed to prove that the claim was not hit by unjust enrichment. Accordingly, even though the refund claim was sanctioned, the Deputy Commissioner directed that the amount should be credited 10. 2016 (335) ELT 446 (Del.) in the account of the Consumer Welfare Fund in terms of section 27(2) of the Customs Act. 10. Feeling aggrieved, Vivo Mobile filed two appeals before the Commissioner (Appeals) against that part of the orders of the Deputy Commissioner that held that since it was a case of unjust enrichment, the sanctioned amount would not be payable to Vivo Mobile and would be required to be deposited in the Consumer Welfare Fund. The appeals filed by Vivo Mobile were allowed by the Commissioner (Appeals) for the reason that the incidence of Additional Duty had not been passed on to the buyers. The Commissioner (Appeals), therefore, directed that the amount be refunded to Vivo Mobile. The observations are as follows: "5.4 The period for which the impugned refund claim was filed pertains to the period of 15.12.2014 to 05.06.2015. I find that in respect of a similar case of M/s YU Televentures Pvt. ltd., wherein refund claim was filed for the period January, 2015 to....
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....he Department on 30 September 2019 in view of the directions issued by the Committee of Commissioners under section 129A(2) of the Customs Act. The Committee of Commissioners had observed that the Commissioner (Appeals) was not justified in placing reliance upon the decision of the Delhi High Court in M/s. YU Televentures Pvt. Ltd. vs. Union of India [2016 (340) ELT 88 (Del.)] since in that case the issue involved was whether refund could be granted without re-assessment of the bills of entry, whereas in the present case the issue involved was whether there was unjust enrichment and the issue relating to re-assessment of bills of entry was not involved. The Committee of Commissioners also observed that the Commissioner (Appeals) had not dealt with the reasons given by the Deputy Commissioner relating to unjust enrichment. The grounds taken in the Appeals that were filed on 30 September 2019 are reproduction of the grounds indicated by the Committee of Commissioners for filing the appeal and they are reproduced below: "B. It is also observed that the case of M/s YU Televentures Pvt. Ltd. [2016(340) ELT 88(Del.)] relied upon by the Commissioner (Appeals) to apply it to the p....
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....ation can be maintained even if appeals are not filed against the assessed bills of entry. The Madras High Court had also similarly opined. The first question that arose for consideration before the Supreme Court was whether a self-assessment, when there is no speaking order, can be termed to be an order of self-assessment. It was urged on behalf of the assesses that there is no application of mind in such a situation and merely an endorsement is made by the authorities concerned on the bills of entry which endorsement cannot be said to be an order, much less a speaking order. This contention of the assesses was not accepted by the Supreme Court and it was held that the endorsement made on the bills of entry would be an order of assessment and that when there is no lis, a speaking order is not required to be passed in "across the counter affair". The Supreme Court then examined the provisions of sections 17 and 27 of the Customs Act, both prior to the amendments made by Finance Act 2011 and after the amendments, and observed that there is no difference even after the amendments as self-assessment is also an assessment. The observations of the Supreme Court are as follows: ....
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....sessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. ------------- 47. When we consider the overall effect of the provisions prior to amendment and post amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of section 27 to set aside the order of self assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self assessment, he has to get the order modified under section 128 or under other relevant provisions of the Act. 48. R....
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....r [2021 TIOL-1707-HC-Telangana- CUS], which judgments have considered the decision of the Supreme Court in ITC. 18. The submissions advanced by the learned Authorised Representative appearing for the Department and the Learned Counsel appearing for the respondent Vivo Mobile have been considered. 19. As the learned Counsel for the respondent has made an alternative submission that Vivo Mobile can seek amendment/correction of the Bills of Entry under sections 149 and 154 of the Customs Act, it is not necessary to examine the submissions made by the learned Authorised Representative for setting aside the order passed by the Commissioner (Appeals). 20. In order to appreciate the alternative submissions made by the learned counsel for the respondent, it would be appropriate to first reproduce sections 149 and 154 of the Customs Act and they are as follows: "149. Amendment of 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 customs house to be amended in such form and manner, within such time, subject to such restrictions and conditions, as may be p....
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.... is that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified "in accordance with law by taking recourse to appropriate proceedings". The Modification of the order is under the provisions of section 128(3) of the Customs Act. 24. It is for this reason that the learned counsel for the respondent submitted that even if the refund applications that were filed cannot be entertained, then too it is open to the respondent to invoke the provisions of sections 149 or 154 of the Customs Act for either seeking amendment in the Bill of Entries or seeking correction in the Bills of Entry and then refund applications can be filed. 25. The Bombay High Court in Dimension Data India examined this precise issue and after referring to the provisions of sections 149 and 154 of the Customs Act, observed as follows: "18. From a careful analysis of section 149, we find that under the said provision a discretion is vested on the proper officer to authorise amendment of any document after being presented in the customs house. However, as per the proviso, no such amendment shall be authorised after the imported goods have been cleared for h....
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....idered by the Supreme Court was whether in the absence of any challenge to an order of assessment in appeal, any refund application against the assessed duty could be entertained. In that context Supreme Court observed in paragraph 43 as extracted above that an order of self- assessment is nonetheless an assessment order which is appealable by "any person" aggrieved thereby. It was held that the expression "any person" is an expression of wider amplitude. Not only the revenue but also an assessee could prefer an appeal under section 128. Having so held, Supreme Court opined in response to the question framed that the claim for refund cannot be entertained unless order of assessment or self-assessment is modified in accordance with law by taking recourse to appropriate proceedings. It was in that context that Supreme Court held that in case any person is aggrieved by any order which would include an order of self-assessment, he has to get the order modified under section 128 or under other relevant provisions of the Customs Act (emphasis ours). 22.2. Therefore, in the judgment itself Supreme Court has clarified that in case any person is aggrieved by an order which would in....
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....oE, can be claimed under Section 27 of the Customs Act when such a BoE is amended; that the 2nd respondent has not even considered the decision of the Supreme Court in ITC Ltd. (supra); that the Supreme Court clearly stated in the above case that a BoE has to be amended before filing a claim of refund under Section 27; and that the ratio of decision is very clearly applicable, and it is squarely covered in the present case. 19. Petitioner also contended that the 2nd respondent erred in holding that the BoEs should have been challenged only by way of filing an appeal before the Appellate authority and on not being challenged, the assessment became final. 20. Petitioner pointed out that a BoE can be amended either by filing an appeal u/s.128 or being amended under Sec.149 of the Act; and he could not have insisted that only an appeal is a proper remedy to amend the BoEs ignoring Sec. 149 of the Act. (emphasis supplied) 27. The contention of the Department, as noted in paragraphs 23, 24 and 26, are reproduced below: "23. It is contended that meanwhile the Supreme Court in ITC Ltd. (2 supra) held that refund under Section 27 would only be permissi....
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....nt order is modified and a fresh order of assessment is passed and duty re-determined, the Supreme Court nowhere said that such amendment or modification of an assessment order can only be done in an Appeal under Section 128. In para 47, the Court held categorically. 35. Thus, even the Supreme Court clearly indicated that the modification of the assessment order can be either under Section 128 or under other relevant provisions of the Act i.e. Section 149. 36. Therefore, the stand of the respondents in the counter affidavit that only reassessment under Section 128 is the remedy available to the petitioner, and Section 149 cannot be invoked, is not tenable. We also reject the plea of the 2nd respondent that there is no possibility of getting modified an order of assessment under any other relevant provision and that petitioner is trying to overcome limitations stipulated in Section 128. 37. The only condition required to be fulfilled for seeking amendment of documents such as a BoE under Section 149 is that such amendment should be sought on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, ....