2024 (3) TMI 460

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....tant Commissioner of Customs rejecting the refund application filed by the appellant in respect of eight Bills of Entry is sought to be assailed in this appeal. It needs to be noted that the Commissioner (Appeals), by the said order, had allowed the appeal in respect of three Bills of Entry. 2. The appellant had imported "Fitbit Wearable Devices" by classifying them under Customs Tariff Item [CTI] 9031 80 00/8423 10 00 of the Customs Tariff Act, 1985 [the Tariff Act] and had cleared them after payment of duty as per the self-assessment. The appellant, however, subsequently realized that the said item was incorrectly classified and that it would correctly be classifiable under CTI 8517 62 90 of the Tariff Act attracting Nil Basic Customs ....

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....lant had filed applications for amendment under the Customs Act, which applications were pending before the Deputy Commissioner. 3. Thus, as re-assessment was allowed in respect of three Bills of Entry, the impugned order dated 25.07.2017 in so far as it rejected the refund claim in regard to these three Bills of Entry was set aside by the Commissioner (Appeals) and the refund claim was directed to be re-examined in accordance with law. In respect of eight Bills of Entry, the Commissioner (Appeals) observed that the request of the appellant for directing the Deputy Commissioner to decide the application filed for amendment of the Bills of Entry under section 149 of the Customs Act cannot be entertained in the absence of a provision under....

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....tative appearing for the department have been considered. 7. It is not in dispute that in respect of eight Bills of Entry the appellant had not filed any appeal before the Commissioner (Appeals) for re-assessment. In this view of the matter, the Commissioner (Appeals) was justified in holding that the refund applications would not be maintainable in view of the decision of the Supreme Court in ITC. 8. The sole question that arises for consideration in this appeal is whether a direction should be issued to the Deputy Commissioner to decide pending application filed by the appellant under section 149 of the Customs Act for amendment in the Bills of Entry. 9. Section 149 of the Customs Act, on which reliance has been placed, is as fol....

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....cision of the Supreme Court in ITC. 30. It is expected that if such applications are now filed by Vivo Mobile, the same would be adjudicated expeditiously as the refund applications were filed in 2015. It is, therefore, ordered that in the event applications are now filed by Vivo Mobile, they shall be decided expeditiously and preferably within a period of three months from the date of filing of the applications. The refund applications, if any filed after the decision is taken on such applications, shall also be decided expeditiously". 11. The distinction sought to be drawn by the learned authorized representative appearing for the department is mis-conceived. Once an application for amendment has been filed, it is the duty of ....