TaxTMI 
TaxTMI 
2023 (3) TMI 25
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....d 17.03.2012 was paid by the respondent. Under the said Notification a manufacturer is also given an option to pay excise duty at the rate of 1% on mobile phones subject to the fulfillment of the condition that CENVAT credit on inputs and capital goods is not claimed under rule 3 read with rule 13 of the CENVAT Credit Rules, 2004 [the 2004 Rules] for manufacture of the mobile phones. Under Serial No. 132 of Notification No. 1/2011-CE dated 01.03.2011, as amended by Notification No. 16/2012-CE dated 17.01.2012, a manufacturer is also given an option to pay excise duty at the rate of 2% on „parts, components and accessories namely, battery chargers, PC connectivity cables, memory card and hands-free headphones of mobile handsets‟ falling under any Chapter under the Tariff Act. This is also subject to the fulfillment of the condition that CENVAT credit on inputs and capital goods is not claimed. The above benefits were not availed by the respondent at the time of import as it was under an impression that it did not satisfy the condition set out in the Notification. 2. The issue relating to applicability of conditions of non-availment of CENVAT credit in relation t....
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....bsp; The Bills of Entry were amended and no appeal has been filed by the department against such orders. Thus, the orders attained finality and it would not be open for the refund sanctioning authority to challenge them while dealing with refund applications; (ii) Refund has been filed consequent to amendment made in the Bills of Entry. Thus, refunds filed within one year from date of such amendment cannot be said to be time barred; and (iii) The Supreme Court in ITC held that the claim for refund cannot be entertained unless the order of assessment is modified in accordance with law by taking recourse to appropriate proceedings and it does not restrict such proceedings only to an appeal filed under section 128 of the Customs Act. 7. The relevant portions of the aforesaid order dated 21.08.2020 passed by the Commissioner (Appeals) are reproduced below: "5.4.9 Thus if the self-assessment is modified under any of the above provisions of the Act and the same results in lowering of duty liability than what was paid on account of self-assessment, refund claim would arise and the same has to be entertained under section 27 of the Customs Ac....
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....d, the officer had become functus officio; (iv) The Commissioner (Appeals) failed to appreciate that as per section 27 (1B)(b) of the Customs Act, a refund is admissible within one year of the date of judgment, decree, order, or direction as a consequence of which refund was barred by time; (v) The Commissioner (Appeals) wrongly assumed that the Bills of Entry were re-assessed @1% additional duty of customs leviable under section 3(1) of the Tariff Act based on the judgment of the Supreme Court in the SRF as the Assistant Commissioner could not have made a re-assessment, as only an appeal could have been filed; and (vi) The Commissioner (Appeals) erred in considering the case as falling under section 154 of the Customs Act. 9. Shri B.L. Narasimhan, learned counsel for the respondent assisted by the Shri Rachit Jain and Shri Ashwani Bhatia submitted that: (i) The respondent had sought amendment in the Bills of Entry and the Bills of Entry were amended in the year 2018. This would be in accordance with the judgment of the Supreme Court in ITC and refund can be claimed on the basis of such amendment made under ....
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.... much emphasis has been placed by the learned special counsel appearing for the department on the decision of the Supreme Court in ITC. The issue involved before the Supreme Court in all the Civil Appeals was whether, in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty can be entertained. The Bench of the Tribunal at Kolkata had opined that unless the order of assessment is appealed, no refund application against the assessed duty can be entertained. On the other hand, the Delhi High Court had opined that when there is no assessment order for being challenged in appeal, because there is no contest or lis and hence no adversarial adjudication, a refund application 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 i....
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....he exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, reassessment 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 f....
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....s. (5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be." 18. Section 27 of the Customs Act deals with claim for refund of duty and the portion of this section relevant for the purposes of these appeals is reproduced below: "27. Claim for refund of duty (1) Any person claiming refund of any duty or interest,- a) paid by him; or b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest." ***** (1B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in t....
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.... by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be." 21. In paragraph 44 of the judgment of the Supreme Court in ITC, which has been reproduced in paragraph 16 of this order, the Supreme Court observed that the provisions of section 27 cannot be invoked in the absence of amendment or modification having been made in the Bills of Entry on the basis of which self-assessment was made. The Supreme Court further observed that refund proceedings are in the nature of execution proceedings and, therefore, the order of selfassessment is required to be followed unless modified/amended before the claim for refund is entertained under section 27. In this connection, the Supreme Court relied upon the decision of the Supreme Court in Priya Blue Industries Ltd. vs. Commissioner of Customs (Preventive) [2004 (172) E.L.T. 145 (S.C.)] . 22. The Supreme Court ultimately observed in paragraph 47 of the judgment that the overall effect of the provisions of section 27 of the Customs Act, both prior to the amendment and post amendment, is that the claim for refund cannot be entertained unless the order of asses....
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....f any clerical or arithmetical mistakes or errors arising in any decision or order due to any accidental slip or omission at any time which would include an order of self-assessment post out of charge. 22. Having noticed and analysed the relevant legal provisions, we may now turn to the decision of the Supreme Court in ITC Ltd. vs. Commissioner of Central Excise, Kolkata IV (supra). The question which arose before the Supreme Court was whether in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty could be entertained. 22.1. From the question itself, it is clear that the issue before the Supreme Court was not invocation of the power of re-assessment under section 17(4) or amendment of documents under section 149 or correction of clerical mistakes or errors in the order of self-assessment made under section 17(4) by exercising power under section 154 vis-à-vis challenging an order of assessment in appeal. The issue considered 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 ....
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....ation for amendment of the Bills of Entries under section 149 of the Customs Act so that after that the duty could be refunded. The application filed by the petitioner was however, rejected. The contentions of the petitioners, as noted in paragraphs 14, 19 and 20 of the judgment of the Telangana High Court, are reproduced below: 14. The petitioner contends that the impugned order has been passed in complete contradiction with the decision of the Supreme Court in ITC Ltd. (supra) wherein it has been held that a BoE is required to be amended or modified, under the relevant provisions of the Customs Act, before filing of a refund application under Section 27 of the Customs Act; that under the Customs Act, a BoE can be either modified by way of filing an appeal under Section 128 of the Customs Act or can be amended under Section 149 and / or 154 of the Customs Act; that under the Customs Act, there is no other manner in which a BoE can be modified or amended part from these two methods; thus, from the above observations of the Supreme Court, it is very clear that a refund of any excess duty paid while filing the BoE, can be claimed under Section 27 of the Customs Act when such....
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....nt has to be carried out under Section 149 without any limitation of time, the existence of the provisions of Section 128 and Appeal mechanism therein would become redundant; and if at all the amendments, even in the nature of re-assessment, are to be carried out under the provisions of Section 149, there is no requirement for the existence of the provisions of Section 128 or other similar provisions." 27. The Telangana High Court noted that though there is a remedy of an appeal against the assessment of the Bills of Entry, but section 149 of the Customs Act also enables an assessee to seek amendments in the Bills of Entry. The relevant portions of the judgment are reproduced below: "33. So Sec.149 is an additional remedy available to the petitioner to seek amendment of the BoEs subject to the condition that such amendment is sought on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported as the case may be. 34. In the decision of the Supreme Court in ITC Ltd. (supra) while holding that the refund cannot be granted by way of a refund application under Section 27 of the Act until and ....
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....stant Commissioner caused further great injustice to petitioner. 49. Also, the Assessing Authority has failed to consider the fact that Section 149 of the Act does not prescribe any time limit for amending the Bill of Entry filed and assessed. The power to amend under Section 149 of the Act is a discretionary power vested with the authority. Since, it is due to incorrect determination of duty by the assessing authority initially, the petitioner is compelled to seek amendment of Bill of Entry under Section 149 of the Act. Thus, the importer / petitioner cannot be penalized for what the authority ought to have done correctly by himself." (emphasis supplied) 28. Thus, in view of the aforesaid decisions of the Bombay High Court in Dimension Data India and the Telangana High Court in Sony India, the respondent could take recourse to appropriate proceedings, including the provisions of sections 149 or 154 of the Customs Act for either seeking amendment of the Bills of Entry. These two decisions have placed reliance on the decision of the Supreme Court in ITC. 29. In the present case, the order carrying out an amendment in the Bills of Entry under secti....
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....t in 2000 (121) E.L.T. A139 (S.C.). The Commissioner (Appeals) as also relied on the decision of the Tribunal in Commissioner of Cus. (Import) vs. Indian Farmers Fertiliser Co-Op. Ltd. [2008 (230) E.L.T. 667 (Tri.-Mumbai)] , which decision relied upon the decision of the Bombay High Court in Keshari Steels. 32. The decision of the Bombay High Court in Keshari Steels and the decision of the Tribunal in Indian Farmers were considered by the Bombay High Court in Commissioner of Cus. (Import) vs. Indian Farmers Fertiliser Co-Op. Ltd. [2009 (243) E.L.T. 687 (Bom.)] and it was held that: "2. Vide order dated 13-12-2001, the assessing officer rectified the mistake by modifying the assessment order and holding that the goods were assessable at the rate of 5%, but rejected claim as being time-barred under the provisions of Section 27 of the Customs Act, 1962. The tribunal relying upon the judgment of this Court in Keshari Steels Vs. Collector of Customs, Bombay [2000 (115) E.L.T. 320 (Bom.)] has held that the rejection of refund claim of the appellant as being time-barred under the provisions of Section 27 of the Customs Act, 1962 is not in accordance with law. The tribuna....