TaxTMI 
TaxTMI 
2026 (2) TMI 973
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..... 21467/2017 3. The appellant filed 24(twenty-four) bills of entry, during the period 11.08.2015 to 28.03.2016, self-assessed the bills of entry and cleared the goods inter alia on payment of Basic Customs Duty [BCD]. As per Notification No. 25/2002-Cus dated 01.03.2002 as amended vide Notification No. 08/2004-Cus dated 08.06.2004 parts, components and accessories of Set Top Boxes for Television (TV) are exempted from Basic custom Duty [BCD], however Appellant self-assessed the bills of entry and did not claim the exemption Notification at the time of imports. Thereafter appellant realizing their inadvertence submitted refund claim on 27.06.2016, claiming refund of Rs. 1,72,93,826/- being the excess duty paid. The adjudicating Authority vide Order-in-Original No. 933/2016 BACC Refunds dated 15.09.2016 rejected the refund claim filed by the appellant. The adjudicating Authority has rejected the refund claim on the grounds that; the assessing group has accepted self-assessment without examining the conditions of Exemption Notification as no exemption was claimed; the claimant has not furnished any re-assessment order; there is no speaking order of assessment as required in terms o....
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....n the absence of any re-assessment order having been passed; appellant has neither furnished the re-assessment order nor sought any extension in filing the same; there is no ground made out for denial of exemption and refund of the customs duties paid on merit rate. Aggrieved by the above order, an appeal was filed before Commissioner (Appeals) who has passed the impugned order dated 07.7.2017 rejecting the Appeal filed by the Appellant. Commissioner of Customs (Appeals) has held that; the Bills of entry were self-assessed by the Appellant and the availment of any exemption benefit is always optional to the appellant; it is settled now that after 08.04.2011, when the self-assessment was introduced, the self-assessed bill of entry is not an appealable order and any person can take recourse to an amendment of bill of entry (Section 149 of the Customs Act, 1962) or removal of defects in bill of entry(under Section 154 of the Customs Act, 1962) оr file refund under Section 27 of the Customs Act, 1962, in the event any infirmity is noticed subsequent to clearance of goods; Commissioner (Appeals) has held that the decisions in the case of M/s Flock India and M/s Priya Blue relied u....
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....t or modification of an assessment order can only be done in an appeal under Section 128. In para 47, the Court held categorically: "47...... we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. 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 assess....
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.... 19. This bring us to Section 154 of the Customs Act which deals with correction, clerical errors, etc. It says that clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under the Customs Act or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be. 19.1 Section 154 of the Customs Act reads as under : "154. Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be. 20. Thus, Section 154 permits correction of any clerical or arithmetical mistakes in any decision or order or of errors therein due to any accidental slip or omission. Such correction may be made at any time. 21. From a conjoint reading of the afor....
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....ds at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. It is also not disputed that the assessee has obtained such certificates subsequent to the imports and have claimed refund of the customs duties paid by submitting these before the Customs authorities. However, they rejected the refund claims without considering the certificates and by observing that the bills of entry cannot be reassessed under Section 149 on the basis of the duty concession certificate since these are obtained subsequent to the clearance of the goods. We observe that such an objection was not raised in the show cause notices issued proposing to reject the refund claim. 5.1 Section 27 of the Customs Act covers grant of the refund of customs duties. From 8-4-2011, Section 27 has been amended to do away with the requirement of reassessment of bills of entry before any refund can be considered. On merits, we find that the importer is entitled to the substantive benefit of the Notification No. 24/2005Cus., dated 1-3-2005 inasmuch as the components imported by them were meant for manufacture of tablet PCs. The said Customs notification extends the benefit subject to observance of ....
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.... prescribed for in Section 17 of Customs Act, 1962 is not an option to be invoked by the importer, the erroneous deployment of that in the said letter does not preclude the application of any other relevant provision in the statute. We, therefore, direct that the request for re-assessment be treated as application under Section 149 of Customs Act, 1962 for amendment of the bills of entry. The proper officer may therefore consider this application and pass appropriate order in accordance with law and after granting opportunity to be heard to the appellant herein. 6. Appeal is accordingly disposed of." 16. Learned counsel also draws our attention to the decision of this Tribunal in the matter Kirloskar Ferrous Industries Ltd. Vs. Commr. of Cus., Mangalore- 2021(377) ELT 878 (Tri-Bang), wherein this Tribunal held that :- "6. After considering the submissions of both the parties and perusal of the material on record, I find that in the present case it is an admitted fact that the duty was paid under protest by the appellant and appellant has paid excess duty of Rs. 9.41,005/- and thereafter the appellant vide his letter dated 15-10-2018 requested the Deputy Commiss....
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....ed 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. 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 modificatio....
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....he appellant realising that they are eligible for the benefit of above Notifications filed refund claims for refund of the excess duty paid. The refund claims were rejected on the grounds that refund cannot be granted on grounds inter alia without the challenge of the assessment orders. The appeals filed against the adjudication orders were rejected by Commissioner (Appeals) who upheld the orders of the adjudicating authority. The appellant aggrieved by the orders of Commissioner (Appeals) filed these appeals before the Tribunal. The appellant notwithstanding the appeals filed before this Tribunal had also filed applications before the adjudicating authority for amendment of the impugned Bills of entry under Section 149 of the Custom Act, 1962. We find that this issue of amendment under section 149 of the Custom Act, 1962 has been decided in catena of decisions, cited (supra) and the Hon'ble Supreme Court in the case of M/s. ITC Vs. CCE, Kolkata-2019 (368) ELT 216(SC) and UOI Vs. Sony India Pvt. Ltd.-2023 (385) ELT 93 (SC) 20. We find that in view of the above judgements/decisions rejection of refund claims was not proper and tenable. Hence, the impugned orders rejecting the....