TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 1280
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....al Duty of Customs under Notification No. 12/2012-CE dated 17.03.2012. Subsequently, the appellant filed an application seeking amendment of the Bills of Entry under section 149 of the Customs Act, 1962 [the Customs Act] so as to claim Additional Customs Duty benefit under the aforesaid Notification dated 17.03.2012 in view of the decision of the Supreme Court in SRF Limited versus Commissioner of Customs, Chennai-2015 (318) E.L.T. 607 (S.C). The Deputy Commissioner permitted amendment in the Bills of Entry under section 149 and ordered for consequent reassessment under section 17(4) of the Customs Act. 3. Feeling aggrieved, the department filed four appeals before the Commissioner (Appeals) and as noted above, these four appeals were allowed by the order dated 05.04.2023. The Commissioner (Appeals) noted that once Additional Duty at higher rate was paid without any protest and the importer did not contest the higher Additional Duty, the assessment of the Bills of Entry became final and the importer cannot be permitted to claim the benefit of the judgment of the Supreme Court in SRF Limited. 4. Shri H.Y. Raju, learned counsel for the appellant submitted that the issue involve....
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....as held that for the purpose of attracting Additional Duty under section 3 of the Customs Tariff Act on the import of a manufactured or produced article, the actual manufacture or production of a like article in India was not necessary and that for quantification of Additional Duty in such a case, it has to be imagined that the article imported was manufactured or produced in India and then to see what amount of excise duty was leviable thereon. SRF Ltd was, therefore, held entitled to exemption from payment of Additional Duty. 9. The appellant, on the same reasoning, claimed that it would have to pay the reduced Additional Duty at the rate of 1% in terms of Condition No. 16 of the Notification dated 17.03.2012, which is identical to Condition No. 20 of the Notification dated 01.03.2002 that was examined by the Supreme Court in SRF Ltd. It had, however, paid Additional Duty at the rate of 6% up to February 2015 and at the rate of 12.5% thereafter. It therefore, filed an application for amendment of the Bills of Entry under section 149 of the Customs Act. 10. In order to appreciate the submission, it would be appropriate to first reproduce section 149 of the Customs Act and it....
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....taking recourse to appropriate proceedings". The said paragraph 44 of the judgment of the Supreme Court in ITC is reproduced below: "44. The provisions under 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. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund 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 ....
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.... of any challenge to an order of assessment in appeal, any refund application against the assessed duty could be entertained. In that context Supreme Court observed in paragraph 43 as extracted 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 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 o....
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....stoms Act when such a BoE is amended; that the 2nd respondent has not even considered the decision of the Supreme Court in ITC Ltd. (supra); that the Supreme Court clearly stated in the above case that a BoE has to be amended before filing a claim of refund under Section 27; and that the ratio of decision is very clearly applicable, and it is squarely covered in the present case. ***** 19. Petitioner also contended 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) 16. 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 p....
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....ication under Section 27 of the Act until and unless an assessment order is modified and a fresh order of assessment is passed and duty re-determined, the Supreme Court nowhere said that such amendment or modification of an assessment order can only be done in an Appeal under Section 128. In para 47, the Court held categorically. 35. Thus, even the Supreme Court clearly indicated that the modification of the assessment order 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 exist....