TaxTMI 
TaxTMI 
2023 (8) TMI 621
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....ted 17.03.2012. under Sr.No.133, during the period 17.03.2012 to 06.12.2012. The appellant-department assessed the Bills of Entries without granting exemption which as per respondent is a clerical error by the department as the latter should have given benefit of an 'unconditional notification' even if not claimed by the respondent. After noticing this error in calculation of duty which resulted into excess payment of duty of Rs. 83.04.022/-, in respect of 26 Bills of Entries, the respondent requested for amendment of documents under section 154 read with section 149 of the Customs Act, 1962, assigning these omissions as non-claim of the exemption notification by them as well as 'clerical error' and also sought consequential refund. In all these cases, the duty was paid through debit in DEPB Scripts as evident from record. It was also specified in Para 12 of the OIO that the refund claims had been filed within one year of filing of Bill of Entry. A show cause notice No. VIII/20-364 to 451/ICD/REF/2012, dated 11.12.2012, was issued to the respondent, which was replied by them vide letter dated 01.3.2013. Upon adjudication of the matter by the OIO, the request of the ....
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.... Customs Act. 1962. Consequently, being aggrieved by the order of Commissioner (Appeals), as passed in OIA 572/2013/CUS/COMMR(A/AHD) dated 23.12.2013, department has preferred the present appeal. 5. Department through its AR has pressed for the following grounds: "(i) That "Self Assessment" in Customs has been implemented w.e.f. 08.04.2011 vide Finance Act, 2011. This had been well publicized and is available in the public domain. Self Assessment, inter-alia, required importers/exporters to correctly declare value. classification, description of goods etc. and also to claim the benefit of exemption notifications by themselves and assess the duty thereon, if any. The applicant merely stating in their defense submission dated 01.03.2013 "that the Customs had cleared the consignment on payment of duty including CVD without allowing such exemption" was not only erroneous but gravely misleading. After the implementation Self Assessment, it is not prerogative of the Customs Department to allow exemption, but in fact it is the prerogative of the importer to claim exemption if any. In fact, after the Introduction of Self assessment w.e.t. 08.04.2011, it is imperative that the importer i....
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....(v) The proper course of action in this case was to approach the appellate authority against the assessment order, if aggrieved, as held by the Hon'ble Supreme Court in the case of CCE, Kanpur Vs. Flock India P. Ltd. It is settled law by catena of decisions that, if the assessee has not claimed any benefit of notifications, then the assessing officer could not be blamed for the outcome, as held in CC. (Import and Gen.) Vs. Unicorn Medident P. Ltd.]. The Hon'ble Tribunal in the case of CC. (Import and Gen.) Vs. Unicorn Medident P. Ltd. on 7 February, 2006, further held that "Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 18 and/or modified in as Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The officer considering the refund claim cannot also review an assessment order". Department also relies upon the decision in the case of HINDALCO INDUSTRIES LT....
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....) in the matter of Dimension Data India Pvt Ltd. V/s. C.C in this regard to argue that with in purview of Section 17(4), a reassessment on directions of superior judicial authorities can also be done. (iii) Respondent rely upon the decisions In the case law reported in 1991 (55) E.L.T. 437 (S.C.) MANGALORE CHEMICALS & FERTILIZERS LTD., the Hon'ble Supreme Court has held as under :- "Interpretation of statute Exemption and refund - Condition precedent - Distinction to be made between a procedural condition of a technical nature and a substantive condition- Non-observance of the former condonable while that of the latter not condonable as likely to facilitate commission of fraud and introduce administrative inconveniences.- The consequences (denial of benefit) which Shri Narasimhamurthy (learned Counsel for the Revenue) suggests should flow from the non-compliance would, indeed, be the result if the condition was a substantive one and one fundamental to the policy underlying the exemption. Its stringency and mandatory nature must be justified by the purpose intended to be served. The mere fact that it is statutory does not matter one way or the other. There are condition....
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....oided." [para 12] In view of the facts of the matter and the above rulings and also when the prime conditions to allow CVD exemption are fully satisfied, the exemption claimed by the appellant after clearance of the goods is required to be allowed as a "Substantive benefit" available. 8. Revenue has not correctly appreciated that benefit of a Notification may be claimed, but when it is not claimed initially but it is available otherwise, even in self-assessment system, Customs department is required to extend benefit of the Notification, whether it has been claimed or otherwise. Government also cannot retain any amount with them when it is not payable in accordance with the law. There is no dispute by the revenue on availability of the said duty exemption. Respondent has claimed benefit of the Notification and it is available. Therefore, when the benefit of exemption, which is available otherwise has to be allowed, irrespective of the fact whether it was claimed at the time of import or not. The benefit of a notification cannot go away on the findings, as observed/recorded in this revenue appeal or 0-1-0. Adjudicating authority on one hand observes that "ignorance of law is no e....
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....mporter to make entry for the imported goods by presenting a Bill of Entry electronically to the proper officer with correct assessment on self assessment system. However, Revenue has not correctly appreciated that even If the said self-assessment is found incorrect, duty be re-assessed by Revenue. In both the cases, where self-assessment is not done correctly or when self-assessment is found incorrect by Revenue, then invariably the re-assessment is required to be made under Section 17 ibid if the proper officer of Customs are not satisfied with the assessment. However, Revenue and 0-1-0 has not correctly appreciated that the said Notification has allowed exemption only when the importer proves that the imported goods of CTH 3204 or 3809 have been used for manufacture of "Textile and textile Articles". There was no dispute or disagreement from revenue that imported goods are not of CTH 3204 or they are not used "for manufacture of Textile and textile Articles". Thus, the prime condition for allowing duty exemption is not in any dispute from either side. The exemption should have been allowed, even when claimed after clearance of the goods. This O-1-A has simply earlier allowed app....
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....after noting that the refund was within time limit of Section 27 holds that amendment is required to be done as per Section 149 of the Customs Act, 1962 and thereafter any consequential benefit is required to be given as per the provision of Section 27 of the Customs Act, 1962. While setting aside the impugned order, he has given direction to the Adjudicating Authority that the bill of entry shall be amended under provision of Section 149 of the Customs Act, 1962, by inserting the relevant notifications claimed by the respondents. Notification No. 4/2006-C.Ex dated 01.03.2006, during the period 1 March, 2006 to 16 March, 2012 and Notification No. 12/2012-C.Ex dated 17.03.2012 (Sl. No. 133), during the period 17.03.2012 to 06.12.2012, and thereafter, once amendment is carried out, the same shall be re-assessed under Section 17 of the Customs Act, following natural justice. 14. We find that the department is aggrieved with this order mainly on the ground that the once order of assessment is passed and the duty becomes liable to be paid, then unless the order of assessment has been reviewed under Section 18 or modified in appeal, the benefit of notification not claimed earlier cannot....
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.... two different Notifications or under two different Heads, he can claim more benefit and it is the duty of the authorities to grant such benefits if the applicant is otherwise entitled to such benefit. Therefore, non-consideration on the part of the Deputy Director General (Medical), DGHS to the prayer of the appellant in claiming exemption under category 3 of the notification is illegal and improper. The prayer ought to have been considered and decided on merits. Grant of exemption under category 2 of the notification or withdrawal of the said benefit cannot come in the way of the applicant in claiming exemption under category 3 if the conditions laid down thereunder have been fulfilled. The High Court also committed the same error and hence the order of the High Court also suffers from the same infirmity and is liable to be set aside. 17. Strong reliance was placed by the respondents on a decision of this Court in Mediwell Hospital & Health Care Pvt. Ltd. v. Union of India & Ors., (1997) 1 SCC 759 : JT 1997 (1) SC 270. In Mediwell Hospital, the Court was considering the very same notification 64/88 and grant of exemption to hospital equipments imported by specified category of....