TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 727
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....ustoms(hereinafter referred to as "CVD") at the rate of 6% (upto28.02.2015) and at the rate of 12.5% (w.e.f. 01.03.2015). As per Sl. No. 263A of Notification No. 12/2012-CE, a manufacturer was given an option to pay excise duty at the rate of 1% on mobile phones subject to the fulfilment of condition that CENVAT credit on inputs and capital goods is not claimed under Rule 3 read with Rule 13 of the CENVAT Credit Rules, 2004. However, applicability of such exemption notification on importer in respect of import of goods was settled only in March 2015 vide M/s SRF Ltd. vs. Commissioner of Customs, Chennai 2015 (318) E.L.T. 607 (S.C.), wherein Hon'ble Apex Court held that the subject exemption notification would be applicable on import of goods and condition pertaining to non-availment of CENVAT Credit will be deemed to be fulfilled in case of imported goods. 2.1. In the present case, though goods were imported from 26th March 2015 to 9th July 2015 (i.e. post SRF Judgment), however, on account of restriction on ICEGATE, the Appellant was unable to claim benefit of exemption notification and thus paid higher CVD on imported goods. Subsequently, the Appellant filed refund of differenti....
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....ings in OIO-II dated 28.05.2018. * Department challenged OIO-III on various grounds, without questioning re-assessment order dated 18.08.2016. 3.1. The appellant submits that the above series of events clearly reflects that the subject BOEs were reassessed vide order dated 18.08.2016 and basis such re-assessment of BOE, the Appellant was sanctioned refund by the adjudicating authority vide OIO-II dated 28.05.2018 and OIO-III dated 28.03.2019. It is pertinent to note that the department has not disputed the fact that reassessment has taken place for the subject Bills of Entry in any of the appeals. It is submitted that since the re-assessment order was never challenged by the department, therefore the same has attained finality. Hence, the Appellant is legally eligible to the refund consequent upon the reassessment of the demand. 3.2. Reliance in this regard is placed on the decision of Principal of Commissioner of Customs, ACC (Import), New Delhi v. Lava International Ltd. (2023) 4 Centax 322 (Tri-Del.), wherein the refund was sought to be denied to the assessee on the ground that underlying bills of entry were not challenged under Section 128 and thus not reassessed in terms o....
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....t against OIO-III dated 28.03.2019, was never challenged on the ground that the bills of entry have not been challenged. Rather, said OIO-III was challenged on various other grounds viz., bar of unjust enrichment, applicability of exemption notification etc. Thus, it is submitted that since the issue that the refund cannot be claimed without challenge to the Bill of Entry was never before the Appellate Authority, therefore the impugned order, rejecting refund claim on such ground is prima facie perverse, erroneous and beyond the scope of appeal filed by the department. Reliance in this regard is placed on the case of Jeevan Diesels & Electricals Ltd. v. CCE, Cus. & S.T., Bengaluru-III 2017 (353) ELT 78 (Kar.) 3.5. In view of the above submissions, the appellant prayed for setting aside the impugned order passed by the Ld. Commissioner (Appeals). 4. The Ld. Special Counsel appearing on behalf of the department submits that in order to ascertain whether re-assessment of the Bills of Entry has been carried out or not, he has sent a letter to the Principal Commissioner of Customs (Airport & Air Cargo Complex) requesting the case records for submission before the Tribunal. The Joint C....
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...., 1962, and the Customs Act does not have a provision enabling the importer to request reassessment of BOE. [Annexure -3 at page no 55 of the paperbook] (e) The Department issued a Show cause notice dated 01.01.2016 mainly on the nonsubmission of reassessed Bills of entry/ [ Annexure -4 at page 56 of the paperbook]. (f) In reply to the show cause notice dated 01.01.2016, the Appellant reiterated that reassessed bills of entry are not required for the refund. [Annexure -5 at page no 60-63 of the paperbook] (g) The Appellant filed additional submissions on 14.03.2016 regarding the Applicability of Micromax Informatics Ltd Vs Union of India. [ Annexure -6 at page no 64-66 of the paperbook] In the Micromax Informatics Ltd case the Delhi High Court held that in the selfassessment regime, a person who had paid or borne the duty could lodge a claim for refund under Section 27(1) of the Act and the competent Authority had to pass an order under Section 27(2) even if the assessment order has not been reviewed or modified in appeal. (h) The Deputy Commissioner (hereinafter referred to as 'DC'), Air Cargo Refund, Kolkata, passed the Order-in-Original No.74/2016 A.C.R.S. dated ....
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....e was no requirement of reviewing a modification in an order of assessment while entertaining the refund order. (iii) The Appellant has also not submitted any evidence of reassessed bills of entry (importer's copy), one copy of which he is duly authorised to receive. 4.2. The Ld. Special Counsel further submits that another question of law in this case is whether the Commissioner was empowered to order a reassessment of a self-assessment under the provisions of the Customs Act. Regarding Imports, Section 12 levies Customs duties on goods imported Into India. Once they are cleared for home consumption, the goods cease to be imported goods, and the person who imported them also ceases to be the importer; therefore, there cannot be any further assessment of duty (under Section 17). Sections 2(25) and 2(26) of the Customs Act clarify this position, and they read as follows: Section 2: Definitions: (25) "imported Goods" means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption; (26) "Importer" in relation to any goods at any time between their importation and the time when they are cleared for home ....
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....he ITC case. 4.4. In view of the above, the Ld. Special Counsel submits that there was no reassessment order issued. Factually and legally, it was not possible to pass reassessment of goods cleared for home consumption. In the present case, the Appellant has neither appealed against the self-assessment in the 17 Bills of entry under Section 128 of the Customs Act nor has it been modified/amended under Section 149 and 154 of the Customs Act or other provisions. Hence, the Appellant is not entitled to a refund under Section 27 of the Customs Act because the ITC Ltd case and Dimension Data India Private Ltd Vs Commissioner of Customs 2021 (376) ELT 192 have finally settled the issue. Accordingly, he prayed for rejecting the appeal filed by the appellant. 5. Heard both sides and perused all the documents available on record. 6. We find that the issue involved in the present appeal are: (i) Whether refund can be denied to the Appellant by applying the principle laid down in the judgment of ITC Limited vs. Commissioner of Customs, Kolkata-IV2019 (368) ELT 216 (SC), when subject BOEs were already reassessed and such re-assessment order has attained finality? (ii) Whether Appellate ....
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....d or not. 6.3. During the course of hearing, the Ld. Special Counsel appearing on behalf of the department was directed to ascertain from the department whether re-assessment of the Bills of Entry have been carried out or not. In this regard, he submitted that he has sent a letter to the Principal Commissioner of Customs (Airport & Air Cargo Complex) requesting the case records for submission before the Tribunal. However, the Joint Commissioner of Customs (Airport), vide letter dated 13.06.2025, has intimated that the original file no. S107-328/2015 ACRS is not traceable Accordingly, they issued two tracers, dated 21.12.2020 and 19.01.2022, to trace the subject file; however, the same could not be found. 6.4. Since the original file is not traceable, we have to ascertain whether re-assessment has been done or not, only from the other documentary evidences available on record. In this regard, we find that the appellant has relied upon the findings of the adjudicating authority in the Order-in-Original dated 25.05.2018. A perusal of the facts recorded in the OIO dated 28.05.2018 reveals the following.: * Approval for re-assessment was given by the Ld. Principal Commissioner on 08....