TaxTMI 
TaxTMI 
2024 (4) TMI 484
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....od under the correct CTH 85129000. They had requested to consider their submission on record and allow them to amend the bills of entry under section 149 of the Customs Act, 1962 (CA '62). The adjudicating authority after due process of law rejected the request. On appeal, the Commissioner (Appeals) upheld the same. Hence the present appeal before this Tribunal. 3. Shri Ganesh Aravindh, learned Counsel appeared for the appellant and Shri R. Rajaraman, learned Assistant Commissioner (AR) appeared for the respondent. 4. Shri Ganesh Aravindh, learned Counsel submitted that during the period January 2019 to July 2019, they had imported various parts and components of lighting equipment vide 16 BE's by incorrectly classifying the goods under CTH 8512 2010 and 8512 2020 as 'lighting equipment', instead of CTH 8512 9000 as 'parts of lighting equipment'. Therefore, to rectify the inadvertent error in classification and seek refund of the excess duty paid on the imported components, the Appellant submitted letter dated 13.09.2019 to the Ld. Assistant Commissioner along with copies of necessary documents like erroneously and correctly filed BE's and invoices seeking amendment of Bill o....
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....ing to the imported goods. 7.3 Further, no reassessment shall be allowed unless the order of assessment including self-assessment is duly modified by way of appeal as per Public Notice No 88/2019 dated 18.10.2019 in F.No. S. Misc.02/2018-19-AM-CH-ii. 8. Under such circumstances, there is no question of reassessment and issue of speaking order in case of disagreement by the importer under section 17(4) and 17(5) of Customs Act, 1962 respectively. It is not the contention of the importer that reassessment was made by the officer and in all the cases they already cleared the goods which could not be subjected for examination at present. Further, reassessment has to be made before granting Out of Charge (OCC) and clearance of goods under section 17(4) of Customs Act, 1962. Also in the absence of examination by any Department Officer, the importer's claim for CTH has not been substantiated with satisfying documentary evidences. 9. In view of the above, I pass the following order: ORDER (i) I reject the importer's claim for reassessment under different CTH in the absence of legal provision as well lack of merits." Aggrieved by the order dated 05.....
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.... impugned order is erroneous and contrary to the plain language of section 149 of the Act. He stated that on a plain reading of the provisions of the said Section 149 it is clear that a BE can be authorised to be amended even after the imported goods have been cleared for home consumption on the basis of documentary evidence that was in existence at the time the goods were cleared. Therefore, the observation that amendment under Section 149 is not permissible after clearance of the imported goods is erroneous and the impugned order must be set aside. The impugned order is contrary to the decision of the Hon'ble Supreme Court in ITC Limited v. CCE [2019 (368) E.L.T. 216 (S.C.)], where in it was held that claim for refund cannot be entertained unless the self-assessment is modified under section 128 or under other relevant provisions of the Act. Relevant portions of the judgment are extracted below for ease of reference: "44. The provisions of 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. ........ ......... 47. ....... the claim for refund c....
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....y, 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 under any other law for the time being in force, with reference to- (a) the tariff classification of such goods as determined in accordance with the provisions of the Customs Tariff Act; (b) the value of such goods as determined in accordance with the provisions of this Act and the Customs Tariff Act; (c) exemption or concession of duty, tax, cess or any other sum, consequent upon any notification issued therefor under this Act or under the Customs Tariff Act or under any other law for the time being in force; (d) the quantity, weight, volume, measurement or other specifics where such duty, tax, cess or any other sum is leviable on the basis of the quantity, weight, volume, measurement or other specifics of such goods; (e) the origin of such goods determined in accordance with the provisions of the Customs Tariff Act or the rules made thereunder, if the amount of duty, tax, cess or any other sum is affected by the origin of such goods; (f) any other specific fa....
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.... (1) The importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting 1[electronically] 9[on the customs automated system] to the proper officer a bill of entry for home consumption or warehousing 10[in such form and manner as may be prescribed]: *****. *****. **** (4) The importer while presenting a bill of entry shall [***] make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, 12[and such other documents relating to the imported goods as may be prescribed]. [(4A) The importer who presents a bill of entry shall ensure the following, namely:- (a) the accuracy and completeness of the information given therein; (b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force.] (5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected a....
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....and amendment of assessment /reassessment in terms of Section 17 and Section 128 of Customs Act,1962. Similarly there are separate provisions available for amendment of documents like IGM, Import report, Export Report, conversion of Bills for WH/Home Consumption, Bonds, Identity Cards, Passenger Manifest, ATA Carnet Form, Statement of DBK, documents pertaining to Custom Broker or CFSs etc. He submitted that only amendment in documents accompanying the BE should be allowed as per Section 149 and not the amendment of assessment, which includes, determination of dutiability, valuation, tariff classification, origin, exemption issues etc., which should be dealt as per specific provision like Section 17 and Section 46. Reading Section 149 without taking cognizance of Section 2, Section 17 and allowing reclassification /reamendment of Assessment under Section 149 will render Section 2 and 17 infructuous. Moreover, there is no time limit prescribed in Section 149. In that case, it will open a Pandoras Box and make tax administration chaotic and BE's will remain always unsettled as an Importer can request for re-opening of any age old assessment by requesting amendment. He prayed that in v....
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....duty payable/paid. A Coordinate Bench of this Tribunal in its judgment in M/s Samsung India Electronics Pvt. Ltd. Vs Principal Commissioner of Customs, Air Cargo Complex (Import), [FINAL ORDER NO. 51665/2023, dated: 20.12.2023] examined the issues connected with assessment in detail and the relevant portion is reproduced below; "Assessment 13. Customs duty is levied at such rates as are specified in the Schedules to the Customs Tariff Act, 1975. These rates can be based on quantity (specific rate of duty) or value (ad valorem rate of duty) and on most goods latter is the case. Based on the classification of the goods in the Schedule to the Customs Tariff Act, their value, exemption notifications, etc., the duty of customs has to be assessed. 14. Assessment is defined in Section 2(2) as follows: . . . . . . . . 15. Thus, classification of the goods under the Customs Tariff is a part of assessment. The next question is who can do this assessment. Section 17, reads as follows: Section 17. Assessment of duty. - . . . . . . . . . 16. Thus, as per Section 17 the importer or exporter has to self-assess duty and the pr....
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....ifies or annuls the assessment order. In this process, the Commissioner (Appeals) may also decide the issue of classification of the goods. 20. The Risk Management System (RMS) of the Customs Electronic Data Interchange (EDI) system clears many consignments of imported goods based on self-assessment by the importer without the proper officer ever getting an opportunity to examine the self- assessment and reassess the goods and this is one such case. In such cases, the Bills of Entry are subject to Post Clearance Audit (PCA) which happened in this case also. A question which arises is if a Bill of Entry which is only self-assessed by the importer without any re-assessment can also be appealed against to the Commissioner (Appeals) under Section 128. The larger bench of the Supreme Court held in ITC Ltd versus Commissioner of Central Excise Kolkata IV [222019 (368) E.L.T. 216 (S.C.)] in the affirmative. The relevant portion of this judgment is as follows: '42. It was contended that no appeal lies against the order of self-assessment. The provisions of Section 128 deal with appeals to the Commissioner (Appeals). Any person aggrieved by any decision or order may appeal....
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....nd other related provisions. The power has been so conferred specifically on ―the proper officer‖ which must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods i.e. the Deputy Commissioner Appraisal Group. Indeed, this must be so because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision to assess the goods. (emphasis supplied) 22. While Section 128 does not place any restriction, other than the limitation of time, for filing an appeal against assessment, issue of SCN under Section 28 is restricted by WHEN, WHO and WHY. The notice has to be issued within the normal period of limitation (or the extended period of limitation) by 'the proper officer' and only to recover duties not paid, short paid, not levied, short levied or erroneously refunded. 23. To sum up, the power to assess duty lies with the importer and the proper officer. Classification, valuation and applying an exemption notification, are all part of the process o....
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....on to another person. This is what led to the principle of 'unjust enrichment' and the Apex Court in Mafatlal Industries & others Vs. UOI [1997 (5) SCC 536] observed that: "Where the burden of duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund." Tax paid on goods hence gets passed on down the production or consumption chain with the incidence of the tax coming to rest with the final consumer. In such circumstances, it is felt that any action that can upset an assessment and alter the amount of tax collected from goods cleared from Customs charge and passed on to the ultimate customer, should not be tampered with administratively by way of an amendment. Changes to substantive rights and liabilities that have been finalized, must be subjected to the more rigorous and transparent process of a quasi-judicial appellate proceeding with statutory safeguards like time limit, review and further appeal etc present. 6.3 The CTH plays a crucial role in the assessment....
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....be determined and the refund claim examined along with unjust enrichment etc. Hence the administrative action of amending the CTH in the BE would virtually amount to an order of reassessment by the same proper officer after the original assessment done had concluded the determination of the liability of the importer to pay duty and the goods have been cleared from Customs controls. Once assessment is concluded it should not be administratively tinkered with either at the behest of the importer or of the department, without it being challenged in appeal. A similar issue has been examined in a catena of judgments of the Apex Court which shall be discussed below. 6.5 As pointed out by the Tribunal in Samsung India (supra), the nature of the power of 'the proper office' under Section 28 of CA '62 was held by the larger bench of Supreme Court in Canon India Pvt. Ltd. (supra) to be broadly a power to review the earlier decision of assessment. It held that such a power is not inherent in any authority. It has been conferred by Section 28 and other related provisions. On similar lines in the case of power to amend a document under Section 149, the power to review the earlier decision of....
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....goods and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. Section 17(4) states that where it is found on verification, examination or testing of the goods or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, reassess the duty leviable on such goods. Prima facie the section indicates that the matter would be required to be decided on a case-by-case basis. The decision whether to verify, examine or test the goods prior to re-assessing it would rest on the subjective satisfaction of the assessing officer especially if the nature or identity of the goods has to be ascertained. Such a decision should be made by due application of mind and the satisfaction recorded by the authority should be objective and based on the facts and material on record. It is for this reason that section 17(5) provides for the passing of a speaking order in the case of reassessment. 7.2 However, once a decision is taken by the proper officer to verify / examine or test goods, then, as per the rule of prudence in law, appellate power is not to....
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.... it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. The Hon'ble Court held; "6. . . . 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. *****. *****. ***** Therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which, if we may term it so, is in the nature of execution of a decree/order." (emphasis added) The matter again came up before the Apex Court in Priya Blue Industries Ltd. v. Commr. of Customs [(2005) 10 SCC 433 : (2004) 172 ELT 145]. The Hon'ble Court held that the once goods were assessed by an appealable order any refund that arises as a consequence of the assessment, could not be entertained much less considered on merits in the absence of a challenge to the assessment made by way of an appeal. The jud....
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....ention that the Apex Court has categorically observed that self-assessment could be modified either under section 128 or under relevant provisions of the Act. According to them on a plain reading of the provisions of Section 149, it is clear that a Bill of Entry can be authorised to be amended even after the imported goods have been cleared for home consumption on the basis of documentary evidence that was in existence at the time the goods were cleared. The Appellant's claim to amend a document under the said section is not disputed. The question is whether an amendment facility permitted under Section 149 is among the 'relevant provisions of the Act' that empowers and can be used as the route to review and undo the assessment already made, which assessment order as per the Hon'ble Supreme Court's judgment in Flock India (supra), 'is in the nature of execution of a decree/order'. 8.3 From the discussions above regarding the impact of a change of CTH declared in the Bill of Entry on the assessment already made, it appear that as per the Hon'ble Supreme Court's judgement discussed above the request for change in CTH and consequently of a final assessment could only be made before....
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....ff Act, 1975, in which case the imported goods would have attracted nil rate of duty. After the Bill of Entries were filed, a Circular was issued by the Board dated 06.04.2018 which clarified the position that solar modules equipped with bypass diode merit classification under Heading 8541. The Hon'ble High Court held that Sections 149 and 154 provide for a machinery for altering the assessment. These are two of the three methods available under the provisions of the Customs Act, 1962, the third being Section 128 ibid. If one of the three methods are available, the importer would be entitled to claim refund under Section 27 of the Customs Act, 1962. The Hon'ble Court directed the department to complete the assessment after amending the BE under Section 149 of the Customs Act, 1962, as had been requested by the importer. The Appellant has also cited the judgments of the Hon'ble Madras High Court in the case of Stanley Engineered Fastening India Pvt Ltd v. CC, [2023 (3) TMI 846- Madras High Court] and Bharti Airtel v. UOI, 2022 (2) TMI 154 which are on similar lines. 9.3 I find that the rule of judicial precedence, holds that a decision of the jurisdictional High Court is binding ....