TaxTMI 
TaxTMI 
2023 (4) TMI 671
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....rting to the legal issues, we need to look into the factual matrix of the case. The appellant had imported Aluminum Scrap Mix (Tense and TT grade) weighing 24.980 MT from Benin which were classifiable under chapter heading 76020010. The Bill of Entry No. 9860159 dated 10.07.2015 was filed at ICD, Kalakaua, Concor, Jaipur at the declared value of goods at 960 USD/ MD and the assessible value was declared as Rs. 21,84,900/- on which total duty including cess was self assessed at Rs.3,95,189/-. The appraising officer found the declared value to be on the lower side as compared to the price available for similar product being imported by other importers. Further, as per Compulsory Compliance Requirement goods were found to be prone to undervaluation and therefore the same were assessed on the basis of London Metal Exchange (LME) prices of prime metal after granting permissible discount as per the Alert Notice No. 14/2005 dated 16.12.2005 issued by the Directorate General of Valuation. Accordingly, the goods were appraised at 1316.30 USD/MT and the assessible value was enhanced to Rs. 27,62,468/- on which the duty payable was reassessed at Rs. 4,99,656/-. The importer paid the said duty....
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....9 filed by M/s Surya Alumex are identical and involves the import of same product & issue of valuation thereof & the jurisdiction of the Deputy Commissioner to reassess the Bill of Entry after the clearance of the goods. However, the chronology of events in this case for reference are as follows:- 08.07.2015 Bills of Entry No. 9841353 dated 08.07.2015 was filed declaring the goods as Aluminium Scrap Mix (Tense & TT Grade) with assessable value of Rs. 22,41,416/- with declared price of 977 USD/Unit. The apprising Officer based on contemporary import data and prices as per LME of the said goods and alert Notice No. 14/2005 enhanced the value @ 1318.88 USD per Unit. The importer cleared the goods as per initial assessment and payment of duty by the Customs Authority. 22.08.2015 The importer vide its letter dated 22.08.2015 received in the office on 26.08.2015 requested to reassess the Bills of Entry without mentioning any ground. 27.02.2016 The Adjudicating Authority (Deputy Commissioner) reassessed the Bills of Entry vide its OIO No. 34/2016 dated 26.02.2016 based on the impugned letter dated 22.08.2015 at the original declared value setting aside the enhanced value....
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.... appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to 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, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or reassessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming....
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....e under the provisions of the Customs Act nor such an interpretation is discernible from any case law on the subject. The proper course for the appellant was to challenge the order of assessment enhancing the value as declared by him and therefore the Commissioner of Appeals rightly set aside the order of reassessment by the Deputy Commissioner. Once the order of assessment was no longer in existence, the claim for refund is automatically unsustainable, particularly in view of the analogy that the claim for refund is maintainable only in the event the bill of entry originally assessed was modified by way of an order in appeal, which the appellant herein had chosen not to file and rather adopted an innovative way of seeking the relief, having no sanctity in law. 12. It is relevant to consider the definitions of 'assessment', 'dutiable goods' and 'imported goods' under section 2 of the Act. These are as follows. 2(2) "assessment" means determination of the dutiability of any goods and the amount of duty, tax, cess or any other sum so payable, if any, under this Act or under the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act) or un....
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....ption, they cease to be 'imported goods' and cease to be 'dutiable goods' and there can be no assessment or re-assessment of duty on such goods under section 17. 15. However, either side may be aggrieved by the assessment and if so, they can appeal against the assessment to the Commissioner (Appeals) under section 128. Departmental officers also have the power to recover duties not levied, short levied, not paid, short paid or erroneously refunded by issuing a notice under section 28. Unlike an appeal under section 128, a notice under section 28 is limited in scope by WHO, WHEN and WHY. Only 'the proper officer' can issue a notice under section 28 and within the normal period of limitation or extended period of limitation (if the elements necessary to invoke extended period of limitation are present) provided in that section and only to recover the duty not levied, short levied, not paid, short paid or erroneously refunded. It cannot be resorted to for any other purpose. 16. The question which arises is if the assessment is final on issue of an order permitting clearance of goods for home consumption and an appeal can be filed by both sides against the assessment, what i....
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....d, by the original officer who had decided to clear the goods and who was competent and authorised to make the assessment. The nature of the power conferred by Section 28(4) to recover duties which have escaped assessment is in the nature of an administrative review of an act. The section must therefore be construed as conferring the power of such review on the same officer or his successor or any other officer who has been assigned the function of assessment. In other words, an officer who did the assessment, could only undertake reassessment [which is involved in Section 28(4). 17. We now examine when the scope of re-assesment under section 17. This section reads as follows. Section 17. Assessment of duty. - (1) An importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, self-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the the entries made under section 46 or section 50 and the self assessment of goods referred to in sub-section (1) and for this purpose, examine or test any imported goods or export goods or ....
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....f-assessment that it made a mistake, say, in not claiming the benefit of an eligible exemption notification, and requests the officer to recall the Bill of Entry in the system and re-assess it giving the benefit of the notification and the officer may do the reassessment. However, as soon as order permitting clearance of goods for home consumption is given, the goods cease to be 'imported goods' and 'dutiable goods' and there can no longer be any assessment or re-assessment, i.e., there can no longer be any determination of the dutiability of any goods and the amount of duty, tax, cess or any other sum so payable. If this limitation was not there in section 17 read with section 2(2), 2(14) and 2(25), 'the proper officer' can re-open and re-assess duty in any Bill of Entry anytime and sections 28 and to some extent, section 129 would have become otiose. 19. For the sake of completeness, we examine relevant parts of section 28 also. They read as follows. Section 28. Recovery of duties not levied or not paid or short-levied or short- paid] or erroneously refunded. - (1) Where any duty has not been levied or not paid or short-levied or short-paid or erroneously ref....