Case Law Details
Indian Oil Corporation Limited Vs C.C.E. & S.T. (CESTAT Ahmedabad)
We find that among other submissions the learned counsel has also made reference of Section 154 of Customs Act, 1962 whereby the assessment can be amended by Reassessment of Bill of Entry. However, on query from the bench learned counsel fairly submits that they have not filed any application under section 154 of the Customs Act, 1962. In this position, we are of the view that in the interest of the justice the appellant should be given an opportunity to pursue their case in terms of section 154 of Customs Act, 1962.
Accordingly, the appellant is directed to make an application under section 154 of the Customs Act, 1962 for Re- assessment of Bills of Entry. The Proper officer shall consider the application to be made under section 154 of the Customs Act, 1962 in accordance with law.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
Brief facts of the case are that the appellant imported various consignments of crude petroleum oil at Vadinar during the period from July 2002 10 November 2004 and these goods were stored in their private bonded warehouse. The Customs Officers referred to the ullage survey reports prepared on board of the concerned carrier tankers and on the basis of such ullage reports, it was observed that in some cases, the quantity discharged at Vadinar was more than the quantity indicated in the Bill of Lading and Invoices. At the time of final assessment of the aforesaid Bill of Entry, the Assessing Officer finalized the assessment after enhancing the invoice value to the extent of pro-rata price of such excess received goods. The imported goods were permitted for removal to the appellant’s Customs Bonded Warehouse at M/s IOCL, Gujarat Refinery. Koyali after filing shipping bills. Thereafter, the imported oil were cleared on payment of duty to concerned rewarehousing station. On finalization of the assessment, the original bill of entries were forwarded to the concerned rewarehousing station and the triplicate copies were provided to the appellant at Vadinar after due endorsement of final assessment. The appellant at Vadinar, challenged the final assessment before the Hon’ble Commissioner (Appeals), Jamnagar. The Commissioner (Appeals), Jamnagar vide OIA no 21 to 51/JMN/2008 dated. 31.03.2008 and 55 to 119/JMN/2008 dated 28.04.2008, set aside the final assessment orders and directed to finalize the assessment of said bills of entry after allowing Address Commission on Freight/Demurrage as per the Charter Party Agreement, charging NCCD on shore tank receipt quantity instead of bill of lading quantity and after considering the transaction value. The Superintendent, Customs, reassessed the bill of entries as per the directions of the Commissioner (Appeals) and issued reassessment order dated 23 12.2008. Consequent to the aforesaid reassessment order, the appellant filed 9 refund claims under cover of 9 different letters. The adjudicating authority rejected the refund claim on the ground that the appellant had not filed any appeal against the 26 orders of final assessment order for finalizing provisional assessment.
1.1 Being aggrieved by the OIO the appellant filed an appeal before the Commissioner (Appeals) which was rejected by upholding the order dated 29.04.2013.Therefore, the present appeal.
2. Shri Willingdon Christian, Learned Counsel appearing on behalf of the appellant submits that the department was supposed to do the Re-assessment suo moto as for the same consignment the re- assessment order was passed at Customs Vadinar. Therefore, there was no need to file any appeal against the assessment order made by Assessing Officer at Vadodara. He submits that the sole purpose of the appellant requesting the proper officer Vadodara for Re- assessment is to implement the Re- assessment Order already passed by the Proper Officer, Vadinar in pursuance of the orders in appeal dated 31.03.2008 and 28.04.2008 setting aside and revising the final assessment orders. Hence this is not a case of any independent challenge or grievance against the earlier Assessment Order passed by Proper Officer, Vadodara.
2.1 He submits that just like the Proper Officer, Vadinar passed Reassessment order in pursuance of the said Order-in –Appeal, the proper officer also ought to have passed Re- assessment Order in pursuance of combined effect of the said Order-in-Appeal and the Reassessment Order of Proper officer at Vadinar. He also submits that such re-assessment is covered by Section 154 of Customs Act, 1962 for correction of Clerical or mathematical mistakes or error arising from any accidental slip or omission.
3. On the other hand, Shri Dinesh Prithiani, Learned Assistant Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. Relying upon the Hon’ble Supreme Court judgment in the case of Priya Blue Industries Ltd – 2004 (172) ELT 145 (SC) he submits that there was no option for the appellant except to challenge the re- assessment order passed by the Proper Officer of Vadodara.
4. We have carefully considered the submission made by both the sides and perused the records. We find that among other submissions the learned counsel has also made reference of Section 154 of Customs Act, 1962 whereby the assessment can be amended by Reassessment of Bill of Entry. However, on query from the bench learned counsel fairly submits that they have not filed any application under section 154 of the Customs Act, 1962. In this position, we are of the view that in the interest of the justice the appellant should be given an opportunity to pursue their case in terms of section 154 of Customs Act, 1962.
5. Accordingly, the appellant is directed to make an application under section 154 of the Customs Act, 1962 for Re- assessment of Bills of Entry. The Proper officer shall consider the application to be made under section 154 of the Customs Act, 1962 in accordance with law.
6. Accordingly, the appeal is disposed of by way of remand to the Original Authority.
(Pronounced in the open court on 18.11.2021)
