TaxTMI 
TaxTMI 
2025 (6) TMI 205
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....m involved a common issue. The following table gives a snapshot of the appeals considered by the Ld. Commissioner (Appeals):- Sl. No. e-File No. (CAPPL/ xxx/ 2021) & M. F. No. S- xxx/ 2021 Name of Appellant Order No. and date challenged under appeal 1. 2222/2021 591/2021 M/s R K Impex & Co (India). (Appellant No. 1) S60(Misc)-206/2017A Gr.3 Pt dated 15.09.2021 (DIN-20210976NN0000605075) 2. 2348/2021 636/2021 F. No. S60(Misc)-122/2017A Gr.3 Pt. 2 dated 20.07.2021 (DIN-20210776NN000081818C) 3 2349/2021 637/2021 M/s R K Impex Pvt. Ltd. (Appellant No. 2) F. No. S60(Misc)-206/2017A Gr.3 Pt. dated 15.09.2021 (DIN-2021976NN00006167E5) 4. 2351/2021 639/2021 M/s Jirawala Export Pvt. Ltd. (Appellant No. 3) F. No. S60(Misc)-206/2017A Gr.3 Pt. dated . 15.09.2021 (DIN-20210976NN000052045F) 5. 2358/2021 638/2021 M/s Jeet Corporation. (Appellant No. 4) F. No. S60[Misc]-206/2017A Gr.3 Pt. dated 15.09.2021 (DIN-20210976NN0000333F98) 6. 2347/2021 635/2021 ....
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..... v. Commissioner of Customs [2021 (376) E.L.T. 192 (Bom.)] and that of Telengana High Court in the case of Soni India Pvt.Ltd. v. UOI &Anr. [2022 (379) E.L.T. 588 (Telengana)]. 6. It is also material to point out here, that the imports were carried out sometimes in around September 2016 and the request for the amendment for the first time appears to be preferred only in the year 2021 - i.e. after an interlude of nearly five years, by which time limitation period to challenge the order of assessment and/or seek a reassessment was over, several times over. 7. The Revenue in its appeal has submitted that the appellant in the first place had neither claimed the benefit of said exemption nor paid any duty under protest. It is their case that the said assessment had attained finality and that having run out of limitation the appellant attempts an alternative route to claim the notification benefit, seeking amendment of the import documents. It is submitted by the Revenue that the assessing authority was very clear and had specifically pointed out that the impugned case was that of re-assessment and not of amendment as visualized/made out by the respondents herein. The Revenue has ....
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....e-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra)." 8. The Ld.Counsel for the respondents however, during the course of the hearing before us, as also by way of written submission filed post hearing of the matter, has been emphatic to submit that their case is squarely covered within the ambit of Section 149 of the Act. He also invi....
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....rence to section 149. It held that- "18. From a careful analysis of Section 149, we find that under the said provision a discretion is vested on the proper officer to authorise amendment of any document after being presented in the customs house. However, as per the proviso, no such amendment shall be authorised after the imported goods have been cleared for home consumption or warehoused, etc. except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, etc. Thus, amendment of the Bill of Entry is clearly permissible even in a situation where the goods are cleared for home consumption. The only condition is that in such a case, the amendment shall be allowed only on the basis of the documentary evidence which was in existence at the time of clearance of the goods." As for section 154, the court held that - "20. ....... Section 154 permits correction of any clerical or arithmetical mistakes in any decision or order or of errors arising therein due to any accidental slip or omission. Such correction may be made at any time." 11. It can be noted from the said order of the hon'ble High Court that ....
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....tracted above that an order of self-assessment is nonetheless an assessment order which is appealable by "any person" aggrieved thereby. It was held that the expression "any person" is an expression of wider amplitude. Not only the revenue but also an assessee could prefer an appeal under Section 128. Having so held, Supreme Court opined in response to the question framed that the claimfor refund cannot be entertained unless order of assessment or self-assessment is modified in accordance with law by taking recourse to appropriate proceedings. It was in that context that Supreme Court held that in case any person is aggrieved by any order which would include an order of self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Customs Act (emphasis ours). 22.2 Therefore, in the judgment itself Supreme Court has clarified that in case any person is aggrieved by an order which would include an order of self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Customs Act before he makes a claim for refund. This is because as long as the order is not modified the order rema....
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....ip or omission at any time which would include an order of self-assessment post out of charge." 14. It however be pointed out that the question impugned in the present matter is not with reference to whether the authority wielded such powers for correction of clerical or arithmetical mistakes or whether any amendment could be carried out under Section 149 of the Customs Act in the matter. The question impugned in the present matter is completely distinct and the said distinction though subtle is crucial to distinguish the two cases. The question impugned herein is that without a direction from a superior authority and with no ingredients of Sectiuon-17(3), (4) or (5) of the Customs Act getting attracted, would it be possible for carrying out reassessment of the assessed Bill of Entry by the assessing officer of his own sweet accord. Even if the Bill of Entry were amended for once, laced with the said aspect, is the question of timelines, though Section 149 does not lay down any such timelines for carrying out the amendment. Question is, when all reasonability of timelines had been lost, would it be appropriate to venture into such an exercise and to what avail. We therefore are ....
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....rwise 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, re-assess the duty leviable on such goods. However from the above, it can be visualized that is it mandatorily prescribed that a direction from the superior authority, to bring about a re-assessment of the goods, is contemplated in law. The answer is a vehement "No". The proper officer himself is empowered to seek for the required documents, verify them or examine and test the goods, and in terms of Section 17(4) if the proper officer arrives at a conclusion that the self-assessment was not done correctly, is empowered under law to re-assess the duty leviable on such goods. But the same has to be carried out at the time of import, and not later say five years, as in this case. This is so that any verification, examination or testing of goods can only be undertaken as long as the goods are in the custody of the department. Once the goods are cleared out of Customs, any verification/testing/examination of goods would not be conceivable. (D) Sunil Steels vs. Commissioner of Customs, Cochin [Final Order No.20794-20795/2024 dated 03....
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.... 4. Therefore, following the decision of this Tribunal in the case of Soir International (supra), and the fact is that the imports in this case are prior to 17.07.2015, we allow the benefit of exemption Notification No.30/2004-CE dated 09.07.2004. Consequently, we do not find any merits in the appeal filed by the Revenue. Accordingly, the same is dismissed." 18. The hon'ble Supreme Court way back in 2004 (of-course not during the self-assessment regime) in the context of a claim for refund had held that once an assessment order is passed, duty would be payable as per that order and so long as the assessment order stood, duty would be required to be paid in accordance therewith. In the said case the hon'ble apex court had followed its judgment in the case of Flock (I) Pvt. Ltd. [2000 (120) ELT 385 (SC)]The courts have persistently harped upon the importance of timelines and have come up with the expression "reasonable period", for exercise of any statutory action and generally held it to be about six months and for cases of exceptional circumstances as five years. In the present matter, the appellants have crossed all timeline thresholds as well, and have sought the intervent....
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....hat the "assessment" undertaken, by the department, was a clerical or arithmetical error. The exercise of assessment of the Bill of Entry is a statutory obligation cast upon the appellant as well as the authorities. It is an undisputed fact on record that the appellants themselves had filed the impugned import documents without a claim for exemption benefit which otherwise was apparently admissible. However, when the import goods having been assessed to duty without taking note of the exemption of notification, the only course available for the appellant was to challenge the impugned assessment and have the said assessment undone and obtain a fresh assessment with the said benefits and thereafter seek consequential benefit as would arise in law. 22. We also note and as also presented before us the provisions of Section 17, of the Customs Act,1962 as then existed, pertaining to assessment of duty were categoric and cast upon the proper officer a responsibility for assessment of the goods to duty as leviable. As it emerges from the facts on record, that the assessments were approved and finalized based on the appellant's own declaration and no such evidence at the time of assessme....
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....of import documents. Assessment of the bill of entry is a legal aspect of work, in furtherance of the provisions of the statute and certainly would not fall within the ambit of an administrative act as could be corrected by way of correction of errors, as sought by the appellant, in proceedings before us. Assessment proceedings, are a substantive act and any infirmity having crept therein, can only be made good by way of a process as built in law i.e. either by adopting the appeal mechanism as provided in law and permissible within the framework of Section 17. It cannot be disputed that in law the officers were then empowered to carry out the assessment of the import documents and obviously such assessment cannot be hypothetical or theoretical or conceptual but necessarily have to be in accordance with the law of the land. Nonetheless, even if erred (otherwise than by way of clerical/arithmetical aspects), the only remedy lies in having the said assessment repealed by an appeal mechanism by a direction from a superior authority as provided in law. 25. In fact the hon'ble Supreme Court has been very categorical in the matter, on the subject in the ITC Ltd. case and had noted that....
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....ng authority becoming functus officio, would no longer be empowered in law to change or modify his quasi - legal action, except as provided in law. 29. In the matter of Commissioner of Central Excise, Mumbai v. Electronics Corporation of India Ltd. [2011 (274) ELT 398] it is held that the benefit of notification can be claimed at any stage. This proposition is not disputed. However, the proper course for claiming the benefit of the notification was by way of filing appeal against the assessment order as held by the Hon'ble Supreme Court in the case of ITC Limited, Priya Blue Industries and a host of other cases, which the appellant failed to do. 30. For the sake of completeness of our order, we would also like to mention that the words "amendment" and "assessment" signify two different connotations and are indicative of two separate, independent and different proceedings in law. The words 'amendment' and 'assessment' as spelled out in Black's Law Dictionary, 7th edition is as under:- Amendment. 1. A formal revision or addition proposed or made to a statute, constitution, or other instrument. Assessment, 1. Determination of the rate or amount of something, su....