TaxTMI 
TaxTMI 
2023 (3) TMI 25
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....nder 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 to the imported goods under the Notification ....
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....s. 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 Act, 1962. Hon'ble Supreme Court has nowhere stated that reassessement can only be done after obtaining an appellate order by f....
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....issible 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 section 149 of the Customs Act; (ii) The respondent correctly claimed refund of duty paid by it and such refund is in consonance with the provisions of the Customs Act and the judgment of the ....
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....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 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 endors....
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....mption 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. Resultantly, we find that the order(s) passed b....
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....king 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 the following manner, namely:- (a) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 25, the limitation of one year shall be computed from the date of issue of such order; (b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate ....
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.... 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 assessment or self-assessment is modified "in accordance with law by taking recourse to appropriate proceedings". 23. In view of the aforesaid judgment of the Supreme Court in ITC. it was open to the respondent to invoke the provisions of sections 149 or 154 of the Customs Act for seeking amendment in the Bills of Entry or correction in the Bills of Entry for claiming refund. 24. The Bombay High Court in Dimension D....
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....f 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 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 e....
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.... 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 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 wa....
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....f 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 unless an assessment order is modified and a fresh order of assessment is passed and duty redetermined, 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 o....
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.... 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 section 149 of the Customs Act attained finality, as the department did not challenge these orders in appeal. It is only during the course of refund applications that the department took a stand that since the order of the assessment was not assailed by the respondent in appeal under section 128 of the Customs Act, the refund applications could not be allowed. Such a stand could not have been taken by the Department. If the department felt aggrieved by the order seeking an amendment in the Bills of Entry under section 149 of the Customs Act, it was for the department to have assailed the order by filing an appeal under section ....