Custom duty refund due to re-assessment of Bills of Entry cannot be denied merely for not filing appeal

Brightpoint India Pvt. Ltd. Vs Commissioner of Customs Mumbai (Air Cargo Import) (CESTAT Mumbai)

The Revenue against the sanction of the refund which arose out of re-assessment of the Bills of Entry, filed appeal before the Commissioner (Appeals), and the Commissioner (Appeals) accepted the appeal by holding that since the appellants have not filed appeals against the Bills of Entry the refund is not legal and correct. We find that the refund was not filed against the assessment of Bills of Entry but the Bills of Entry were admittedly re-assessed by the assessing officer in terms of Section 149 of the Customs Act, 1962. Once, the Bills of Entry was re­assessed by the Revenue thereafter if neither side is aggrieved with the said re-assessment, it attained finality. Accepting the re­assessment the appellant filed refund claim which arose out of the re-assessment of Bills of Entry. We are surprised to note that once there is no lis between the appellant and the department with regard to the re-assessment of the Bills of Entry, the contention of the Revenue to file appeal is baseless and not acceptable. The Commissioner heavily relied upon the judgment of ITC Ltd. (Supra), wherein it was held that against the assessment of Bills of Entry, the assessee cannot come directly with a refund unless and until the assessment of Bills of Entry is challenged and decided in favour of the assessee. In the present case rather, ITC Ltd. case directly supports the appellants case as the without challenging the assessment, Revenue on their own re-assessed the Bills of Entry. Once the re­assessment is acceptable to both the sides and if any refund arising out of said re-assessment, no question of filing the appeal arises. Therefore the refund of the appellant is line of the judgment in the case of ITC Ltd.

FULL TEXT OF THE CESTAT MUMBAI ORDER

The issue involved in the present case is that whether refund can be rejected on the ground that no appeal was filed against the Bills of Entry under Section 128 of the Customs Act, 1962, when the said Bills of Entry were re-assessed by way of amendment under Section 149 of the Customs Act, 1962.

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