TaxTMI 
TaxTMI 
2021 (11) TMI 622
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....to the issue of the impugned order is as follows. 2. M/s. R C Metal Industries Ltd., the exporter, filed Shipping Bill No. 849680 dated 18.11.2013 to export 'Nozzle filling compound'. DRI received information that the exporter has misdeclared the nature of the export goods and that the export consignment was, in fact, 'Chromium Concentrate' chargeable to export duty. DRI investigated the matter, recorded statements, collected prints of emails correspondence between the exporter and its overseas buyers and seized the export goods. The seized goods were subsequently provisionally released on bond and a bank guarantee and exported. DRI also found that same exporter had, in fact, exported similar consignments through 15 shipping bills through Kolkata port and three shipping bills through Inland Container Depot (ICD) Durgapur falling under the jurisdiction of Commissioner of Customs, Central Excise and Service Tax, Bolpur. After investigation, DRI issued the SCN dated 17th November, 2014 answerable to Commissioner of Customs (Port) Kolkata and to the Commissioner, Bolpur with respect to the consignments exported/ attempted to be exported through the respective ports. 3. Central Board ....
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....f the Customs Act, 1962. (vii) I impose penalty of Rs. 10,00,000/- (Rupees Ten Lakh only) on Shri Mahendra Kumar Sutar, Proprietor of M/s R.C. Metal Industries under Section 114AA of the Customs Act, 1962 for the mis-declared consignment under Shipping Bill No. 8496980 dated 18.11.2013. (viii) I impose penalty of Rs. 10,00,000/- (Rupees Ten lakh only) on Shri Ashok Sawhny, Proprietor of M/s Monarch International under Section 114AA of the Customs Act, 1962 for the mis-declared consignment under Shipping Bill No. 8496980 dated 18.11.2013. (ix) The bank guarantee amounting to Rs. 25,00,000/- (Rupees Twenty Five Lakhs) submitted as security for the provisional release is ordered to be encashed towards realization of Redemption Fine and Penalty. (x) 5151.25 MT of export goods valued at Rs. 13,60,32,008/- (FOB) (Rupees Thirteen Crore Sixty Lakhs Thirty Two Thousand and Eight only) exported under 18 Shipping Bills as mentioned in Annexure - B and Annexure - C of the subject SCN are confiscable under Section 113(d) and 113(i) of the Customs Act, 1962. However, as they have been cleared they cannot be confiscated at this stage. (xi) I confirm the demand of export duty amounting t....
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....eral (ADG), Directorate of Revenue Intelligence (DRI), who is not a proper officer within the meaning of Section 28 (4) read with Section 2(34) of the Customs Act, 1962. Hence, these appeals stand dismissed." In the present case also, the SCN was issued by DRI demanding duty under section 28(4) which is without authority and hence the impugned order adjudicating the SCN needs to be set aside. As far as the notice under section 124 proposing confiscation of goods and imposition of penalties is concerned, he submits that the confiscation under section 113 of the Act was only on the ground that there was mis-declaration in the Shipping Bill, i.e., modifying the assessment under section 28(4) and as this basis is not sustainable, the confiscation under section 113 which is based on such re-assessment of duty must fail too. Therefore, he prays that both appeals may be allowed and the impugned order may be set aside. As far as the current shipping bill is concerned, learned Counsel submits that the learned commissioner confirmed the duty of customs by reclassifying the goods under Customs Tariff Heading 2610090 which is not proposed in and hence is beyond the SCN. Consequently, the co....
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....) and if such re-assessment is contrary to the self-assessment by the exporter, unless the exporter accepts in writing the re-assessment, the proper officer has to issue a speaking order. If 'the proper officer' is satisfied that the export of the goods is not prohibited and the duty as assessed has been paid, he will issue an order under section 51 permitting clearance of the goods. Section 2(34) defines that 'Proper officer', in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Principal Commissioner of Customs or Commissioner of Customs. 9. The process of making an entry under section 50 and self assessment of duty under section 17(1) happen simultaneously because the data required for assessing duty such as the nature of the goods, their classification under the Customs Tariff, rate of duty, exemption notification, quantity and value are in the Shipping Bill and once these data is fed into the Customs EDI system both self assessment of duty under Section 17(1) and filing of Shipping Bill under Section 50 are complete and the arithmetical process of calculating the duty is done by the syste....
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....ed. The importer or his customs broker files the Bill of Entry under section 46 and in the process also self assesses the duty payable under section 17. In many cases, the goods are cleared on the basis of self assessment and in some cases, the self assessment is examined by the proper officer and if necessary, it is re-assessed. The RMS of the Customs EDI system decides which cases should pass through the officer for examination and reassessment. In this changed legal system, if the Bill of Entry or Shipping Bill is only self-assessed and it is done wrongly (say, by not claiming an eligible exemption notification), can a refund be sanctioned under section 27 by the officer dealing with refunds? The Hon'ble High Court of Delhi held in Micromax India [Union of India & Ors. vs. Micromax Informatics Ltd. (2016) 335 ELT 446 (Del)] that where there is no assessment by the proper officer, there is nothing to be appealed against to the Commissioner (Appeals) and hence refund can be sanctioned if there is an error in self-assessment. The larger bench of Hon'ble Supreme Court has, disposing of a batch of Customs, Excise and Service Tax cases, in the case of ITC Ltd [CIVIL APPEAL NOS. 293-29....
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....is must be so because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision to assess the goods." 16. Thus, assessment is a quasi-judicial function and the assessed Bill of Entry/Shipping Bill is an appealable order. Once the assessment is completed, it cannot be modified to grant refund under section 27; it has to be appealed against first. However, a special power to review, reopen and reassess has been provided to the proper officer, i.e., the officer who has done the assessment in the first place or his successor in office under Section 28. This power, as can be seen from its text, is subject to three limitations: a) Who- only 'the proper officer' can issue an SCN; b) When- within the period of one year (or six months as applicable during the relevant period) and if the ingredients necessary to invoke extended period of limitation are available, within five years. c) Why- only if there is non-levy, non-payment, short levy, short payment or erroneous refund which needs to be recovered. Thi....