2025 (8) TMI 899

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....which the appellants are in appeals before this Tribunal. 2. The brief facts of the case are that the appellants imported Steam Coal of Indonesia Origin vide six bills of entry (BoE) under Tariff Item 2701 1920 and discharged the CVD @2% along with applicable cesses. However, the BOEs were provisionally assessed and CVD was required to be discharged @6% on the imported goods instead of 2% in terms of S.No.123 of Notification No.12/2012-Cus. Consequently, the appellants deposited the differential CVD of 4% along with interest under protest. This issue was addressed by Hon'ble Orissa High Court in the case of Visa Steel Ltd Vs CCE & ST, Bhubaneshwar-I [2013 (298) ELT 323], wherein it was held that simultaneous availment of BCD exemption under Notification No.46/2011 and concessional CVD @2% under Notification No.12/2012 on steam coal imported from Indonesia is permissible. This judgment was affirmed by Hon'ble Supreme Court reported at [2016 (339) ELT A120]. This position was further reiterated by CBEC vide Circular No.41/2013 dt,21.10.2013. In the light of the same, the appellants filed their first refund application dt.24.03.2014 before the Assistant Commissioner, who finally as....

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....t Coleman Vs CC [2008 (232) ELT 367] c) Hero Cycles Vs UOI [2009 (240) ELT 490] d) Keshari Steels Vs Collector [2000 (115) ELT 320 (Bombay)], which was affirmed by Hon'ble Supreme Court reported at [2000 (121) ELT A139] 5. They further submitted that in terms of section 149 of the Customs Act, a proper officer may allow amendment of any document, after it has been presented in the Customs House. However, no such amendment shall be permitted after imported goods have been cleared for home consumption, unless the amendment is based on documentary evidence which was in existence at the time of clearance of goods. Hence without prejudice, revised re-assessment request and refund application dt.29.09.2014 itself can be considered as an application for amendment traceable to section 149 of the Customs Act. Reliance has been placed on the following judgments in support of this contention. a) Stanley Engineered Fastening India Vs Authorized Officer, SEZ [2023 (3) TMI 846 (Mad.)] b) Valeo India Vs CC [2024 (4) TMI 484 - CESTAT Chennai] c) Neyveli Lignite Corporation India Vs CC [2022 (4) TMI 1374] d) JK Steel Ltd Vs UOI [AIR 1970 SC 1....

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....i [2015 (12) TMI 520 - CESTAT New Delhi] 8. Heard both sides and perused the records. The issue involved in all the appeals is common and therefore, these appeals are being taken up together for the purpose of disposal. 9. The issue to be decided in these appeals is whether the adjudicating authority has right to modify their own earlier assessment order or not. 10. Learned adjudicating authority in his Order dt.31.03.2015 mentioned that the final assessment was informed to the importer by letter dt.01.07.2014. The importer, vide letter dt.29.09.2014, requested to consider in light of exemption notification as well as circular issued by CBEC. In this regard the relevant portion of OIO is reproduced as below: "6. The final assessment was informed to the importer vide this office letter dt.1.7.2014. The exemption of CVD, vide Notification No.12/2011- Cus dt.17.3.2012, as amended by Notification No.12/2013-Cus dt.1.3.2013 i.e., 2% is not allowed at the time of final assessment also. 7. The importer vide letter dt.29.9.2014 requested to consider the exemption of CVD, vide Notification No.12/2012-Cus dt.17.3.2012 as amended by Notification No.12/2013-Cus dt.1.....

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....ssible in case of incorrect determination of duty by the assessing authority initially. It is also not applicable in the instant case because it is not a case of amendment but it is a case of replacement by new order. Adjudicating Authority has no power to review his own order. 16. Learned Counsel for the appellants also relied on the decision of Hon'ble High Court of Bombay in the case of Zuari Agro Chemicals Ltd Vs UOI [2014 (307) ELT 874 (Bom)], wherein, it was held that "on facts, finalization of Bill of Entry without disclosing any reasons therefor and without giving any opportunity to petitioner to explain away the view of the authority, held to be in breach of natural justice". Even in this case, order of assessment was quashed by superior court and directed to decide afresh to concerned authority. Hence it is also not applicable in the instant case. 17. The adjudicating authority had re-opened the assessment order basing on a decision of Hon'ble Orissa High Court in the case of Visa Steel Ltd Vs CCE & ST, Bhubaneshwar-I (supra), after citing relevant paras of the judgment, which are as follows: "15. We have already held that sub-section (2) of Section 18 does....

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....sessment order, he cannot be deprived of his statutory right to challenge a final assessment order. 19. In view of the above, we do not find any infirmity or illegality in the order of the Appellate Tribunal holding that when an assessee is aggrieved by the assessment order, the recourse open to him is to file an appeal before the appellate forum instead of asking for refund directly by short-circuiting the process of appeal prescribed to be followed under the Act, before the appropriate authority. 20. In the peculiar facts and circumstances of the case, we direct the proper officer to pass a speaking order in terms of Section 17(2) read with Section 17(5) of the Act, 1962 after giving an opportunity of hearing to the appellant. We direct the proper officer to complete the entire exercise within a period of three months from today. We make it clear that we have not expressed any opinion on the merit of the appellant's claim that it is exempted from payment of customs duty vide Notification No. 21/2002, dated 1-3-2002. On receipt of the assessment order it is open to the appellant to avail any remedy/benefit permissible under law." 18. The adjudicating authority....

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....l in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot, be countenanced." 21. Learned Counsel for appellants argued that modification of assessment can also be sought under section 149 of the Customs Act. He further submitted that the proper officer at the time of clearance has power to amend errors even after final assessment. Learned AR, on the other hand, argued that section 149 of the Customs Act will not apply for amendment in assessment order as it related only to corrections in document. 22. Section 149 of the Customs Act provides that the proper officer may, in his discretion, authorize 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. Hence section 149 will not authorize the adjudicating authority to make amendments in the assessment order. 23. Learned Counsel for appellants also argued....