TaxTMI 
TaxTMI 
2009 (7) TMI 107
X X X X Extracts X X X X
X X X X Extracts X X X X
....owever, on physical examination and weighment by the Assessing Officer on 28-8-2007, the actual weight of the consignment was found short to the tune of 15.09 MT. Accordingly, the appellant-importer/assessee filed 6 refund claims on 3-11-2007 under Section 27 of the Act in respect of six bills of entry as the actual weight of imported material was less than the declared weight and appellant-importer/assessee had paid excess duty. The Assistant Commissioner of Customs allowed the said refund application of the appellant-importer/assessee vide orders dated 31-12-2007 (Annexure A/3) on the ground that the material received was less than shown in the bills of entry and that the Superintendent Central Excise Range, Mandi Gobindgarh had certified that the appellant-importer/assessee had availed Cenvat credit less than duty deposited by it. It was also found that the refund claims were within time and no unjust enrichment was involved. 3. The order passed by the Assessing Officer was challenged by the respondent-revenue by filing appeal before the Commissioner (Appeals) Customs and Central Excise, Chandigarh, inter alia, on the ground that once the assessment order has been passed and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s case (supra). 8. Before proceeding further in the matter, it would be appropriate to refer to relevant provisions of Sections 17, 27 and 149 of the Act, extracted hereunder:- "17. Assessment of duty. - (1) After an importer has entered any imported goods under Section 46 or an exporter has entered any export goods under Section 50 the imported goods or the export goods, as the case may be, or such part thereof, as may be necessary may, without undue delay, be examined and tested by the proper officer. (2) After such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in section 85 be assessed. (3) For the purpose of assessing duty under sub-section (2) the proper officer may require the importer, exporter or any other person to produce any contract broker's note, policy of insurance, catalogue or other document whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which is in his power to produce or furnish, and thereupon the importer, exporter or such other person shall produce such document and furnish such....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sioner of Customs under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) the duty and interest, if any, paid on such duty, paid by the importer or the exporter, as the case may be if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person, (b) the duty and interest, if any, paid on such duty, on imports made by an individual for his personal use; (c) to (f) xx xx xx xx Provided further xx xx xx xx (3) to (5) xx xx xx xx 149. Amendment of documents Save as otherwise provided in sectio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct that the duty can be paid only on account of the assessment by the Assessing Officer either on the basis of the statement in the Bill of Entry and on physical examination of the goods or on the basis of particulars of the goods in the Bill of Entry subject to re-assessment of duty under certain situation (when there is a discrepancy in duty leviable with regard to goods imported/assessed between the Bill of Entry and examination report) before clearance of goods under Section 47 of the Act. In any case, the duty leviable and collected is to be in accordance with law and on the goods factually imported. 12. A bare perusal of clause (i) of sub-section (1) of Section 27 read with clause (b) of the Act, extracted hereinabove, reveals that any person before expiry of six months from the date of payment of duty, can claim refund of any excess duty and interest, if any, paid by him in pursuance of an order of assessment. It is further discernible from sub-section (2) of Section 27 of the Act that on receipt of such application, the Assistant Commissioner of Customs, after satisfying himself can make a proper order of refund and further direct the reimbursement to the applicant if th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dinary jurisdiction under Article 226 of the Constitution". The Division Bench by placing reliance on the ratio of judgment in the case of State of U.P. v. Mohammad Nooh, AIR 1958 SC 86 and reiterated in Champalal Binani v. Commissioner of Income Tax, West Bengal and others, 76 ITR 692 (SC) held that wherever there has been breach of fundamental principles of justice, though statutory remedy of appeal may be available, then the Court would certainly not hesitate to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. The Hon'ble Division Bench in para 8 of its judgment held as under:- "8. In the instant case, the Petitioners admittedly, based on the said notification were being granted benefit of the notification previous to the imports in issue and also subsequent to the imports in question. In other words, both the parties were aware of the said notification, lithe Petitioner on account of an inadvertent error chose not to apply for the benefit, would that result in denial of the benefits. In our opinion, that by itself would not be answer as a duty is cast on the authority to assess the goods and impose duty according to law which includes a s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te regarding duty leviable on examination of goods, it was the responsibility of the assessing/proper officer to re-assess (in view of provisions of sub-section (4) of Section 17) and correctly determine the duty leviable in accordance with law before clearing the goods for home consumption. He having failed to do so, had caused great injustice to the appellant / importer and it was open for the importer/assessee to file an application for refund under Section 27 of the Act without taking recourse to filing of an appeal. The competent authority under Section 27 of the Act, subject to fulfilment of the conditions laid therein, was fully competent to exercise its discretion and in view of provisions of Section 149 of the Act permit the amendment of Bill of Entry, on the basis of documentary evidence (examination report Ex. A/1), which was in existence at the time the goods were cleared, and order refund of excess duty paid and collected. It is apparent from the record that in the present case the proper officer/assessing officer who assessed the duty and was competent under Section 149 to permit the amendment in the Bill of Entry was the Assistant Commissioner of Customs, who is also....