TaxTMI 
TaxTMI 
2021 (12) TMI 686
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.... stated that payment was made by the petitioner voluntarily after the petitioner admitted that concessional rate of duty was availed wrongly and accordingly based on the request of the petitioner to conclude the matter, was closed by the respondent under Section 22 of the Customs Act, 1962 by a letter dated 03.07.2019. The facts of the case is that the petitioner is an importer of Prawn feed shrimp larvae feed and fish feed in pellet form, powder form etc. It was the case of the petitioner that the import by the petitioner was exempted partly from duty vide serial No.107 of custom notification No.12/2012 dated 17.03.2012 as amended from time to time. It is the case of the petitioner long after the imports were made and payment of duty under....
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....n of asking the petitioner to file an appeal against the assessment under the Bills of Entry does not arise. That apart, it is submitted that the petitioner had paid duty at 5 per cent the assessment were also completed based on the declarations in the Bills of Entry by the petitioner at the time of import and therefore, there is no question of filing any appeal against the assessments completed in the received Bills of Entry for which a sum of Rs. 3,01,01534/- has been paid. 2. Learned counsel for the petitioner, further submits that the amount paid by the petitioner in response to summons dated 08.02.2019 of the Directorate of Revenue Intelligence, Mumbai has to be construed as payment made under protest. In any event, the amount has t....
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.... or otherwise. 42. It was contended that no appeal lies against the order of self-assessment. The provisions of Section 128 deal with appeals to the Commissioner (Appeals). Any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days. There is a provision for condonation of delay for another 30 days. The provisions of Section 128 are extracted hereunder: "128. Appeals to [Commissioner (Appeals)]. (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a [Principal Commissioner of Customs or Commissioner of Customs] may appeal to the [Commissioner (Appeals)] [within sixty days] from the date of the communication to ....
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....o 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 section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words,....
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....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 Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128. 47. When we consider the overall effect of the provisions prior....
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....ondent to issue a proper show cause notice to the petitioner to show cause as to why refund claimed should not be rejected under one of the grounds. The documents filed by the petitioner indicates that the imports were made by the petitioner long before the amounts were paid by the petitioner pursuant to DRI Investigation. The amounts paid by the petitioner during the investigation has to be treated as amount paid "under protest". Therefore, the question of filing an appeal against the respective Bills of Entry cannot be countenanced. In any event, merits of the refund claim of the petitioner would require a proper determination on facts and therefore, the second respondent was required to issue proper show cause notice to the petitioner gi....