TaxTMI 
TaxTMI 
2025 (8) TMI 16
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....e order passed by the Commissioner (Appeals) may be upheld and the appeal may be dismissed. 3. The Deputy Commissioner rejected the claim made by Trust Marketing for amendment of the 180 Bills of Entry under section 149 of the Customs Act for the following reasons: "5. In the instant matter, all the BEs were assessed finally during the period Feb. 2014 to Oct. 2014 and there was no provisional assessment, the duty was not paid under protest and the applicant has not challenged the assessment in any court of law/appellant authority/tribunal i.r.o the BES. 5.1 The applicant has requested for re-assessment only on the basis of judgment of the Hon'ble Supreme Court in the case of SRF Ltd. VS CC passed on 26.03.2015. The applicant has requested for amendment under section 149 of the Customs Act, 1962. Prior to passing of this order of 26.03.2015, the applicant himself has not challenged the assessment in any court of law. Nor duty was paid under protest at the time of assessment. The applicant has not resorted to provisional assessment. Thus at the time of assessment, the assessment of all the Bill of Entries from the period Feb, 2014 to Oct,2014 were assessed final....
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....dition that "no credit under rule 3 or rule 13 of the CENVAT Credit Rules, 2004 has been taken in respect of the inputs or capital goods used in the manufacture of these goods". In view of the above, the appellant was eligible to avail benefit of S.No. 263A(ii) of the Notification 12/2012-CE dated 17/03/2012 at material time. B. Legal Position ***** In view of above facts & legal position. I find that the appellant was eligible to avail benefit of lower rate of Excise Duty under S. No. 263A(ii) of Notification No. 12/2012-CT dated 17/03/2012 in respected imported mobile phones at the material time. 11. As regards another issue i.e. application filed for amendment in BEs by the appellant can be modified by the DC in accordance with the provisions of section 149 of the Customs Act, 1962 or not, I would like to discuss relevant provisions & legal position as under- *****" B. Legal Position- ***** I observed that in the impugned case at time of clearance all documentary evidence, information/documents were in existence to allow goods at concessional rate @1% (as per S No. 263A(ii) of Notification 12/2012-CE dated 1....
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....wever, in terms of a Notification dated 17.03.2012, the Additional Duty was leviable at 1% under the entry at serial 263A for importing mobile phones, provided Condition No. 16 was satisfied. Condition No. 16 provides that for an assessee to claim lesser 1% Additional Duty, it should not have taken credit under rule 3 or rule 13 of the CENVAT Credit Rules 2004 [the CENVAT Rules] in respect of the inputs or capital goods used in the manufacturer of these goods. 7. The Supreme Court, in the context of import of Nylon Filament Yarn of 210 deniers, examined a similar Condition No. 20 in SRF Ltd. vs. Commissioner of Customs, Chennai-2015(318) ELT 607(SC). The appellant had claimed nil rate of Additional Duty by relying upon a Notification dated 01.03.2002. The Deputy Commissioner of Customs held that SRF Ltd. would not be entitled to exemption from payment of Additional Duty since it did not fulfill Condition No. 20 of the said the Notification, which is to the effect that the importer should not have availed credit under rule 3 or rule 11 of the CENVAT Rules in respect of the capital goods used for the manufacture of these goods. The admitted position was that such CENVAT credi....
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....liance upon the judgments of the Bombay High Court in Dimension Data India and the Telangana High Court in Sony India and the decisions of the Tribunal in Principal Commissioner of Customs, New Delhi (Import) vs. M/s. Vivo Mobile India Pvt. Ltd.-Customs Appeal No. 52388 of 2019 decided on 13.09.2021 and M/s. Ingram Micro India Private Limited vs. Commissioner of Customs ACC (Imports), New Delhi-Customs Appeal No. 50657 of 2021 decided on 23.01.2024. 11. The submissions advanced by the learned authorized representative appearing for the department and the learned counsel for Trust Marketing have been considered. 12. In order to appreciate the submissions, it would be appropriate to first reproduce section 149 of the Customs Act and it is as follows: "149. Amendment of documents Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the customs house to be amended in such form and manner, within such time, subject to such restrictions and conditions, as may be prescribed: PROVIDED that no amendment of a bill of entry or a shipping bill or bill of export shall ....
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....is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-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. *****" (emphasis supplied) 15. It is for this reason that the learned counsel for Trust Marketing submitted that it is open to the respondent to invoke the provisions of section 149 of the Customs Act for seeki....
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....assessee could prefer an appeal under section 128. Having so held, Supreme Court opined in response to the question framed that the claim for 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 remains on record holding the field and on that basis no refund can be claimed but the moot point is Supreme Court has not confined modification of the order through the mechanism of section 128 only. Supreme Court has clarified that such modification ca....
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.... that the 2nd respondent erred in holding that the BoEs should have been challenged only by way of filing an appeal before the Appellate authority and on not being challenged, the assessment became final. 20. Petitioner pointed out that a BoE can be amended either by filing an appeal u/s.128 or being amended under Sec.149 of the Act; and he could not have insisted that only an appeal is a proper remedy to amend the BoEs ignoring Sec. 149 of the Act." (emphasis supplied) 18. The contention of the department, as noted in paragraphs 23, 24 and 26 of the Telangana High Court in Sony India, are reproduced below: "23. It is contended that meanwhile the Supreme Court in ITC Ltd. (2 supra) held that refund under Section 27 would only be permissible when the Bill of Entry had been amended or modified under the provisions of the Customs Act, 1962; that in ITC Ltd. (2 supra), it was held that the refund under the provisions of Section 27 of the Customs Act, 1962 would only be available when Bill of Entry has been amended or modified under the provisions of Custom Act, 1962; that in the instant case, the petitioners filed self-assessed Bills of Entry and not disputed th....
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....r can be either under Section 128 or under other relevant provisions of the Act i.e. Section 149. 36. Therefore, the stand of the respondents in the counter affidavit that only reassessment under Section 128 is the remedy available to the petitioner, and Section 149 cannot be invoked, is not tenable. We also reject the plea of the 2nd respondent that there is no possibility of getting modified an order of assessment under any other relevant provision and that petitioner is trying to overcome limitations stipulated in Section 128. 37. The only condition required to be fulfilled for seeking amendment of documents such as a BoE under Section 149 is that such amendment should be sought on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be. ***** 46. Moreover, the said order was passed on 28.06.2019 prior to the decision in ITC Ltd. (supra) on 18.09.2019. The Supreme Court has clarified in para no.47 of ITC Ltd. (supra) that an order of assessment can be modified either under Section 128 or under other relevant provisions of the Act, and thus clarified that modifi....