Commr. of Customs (Port) Vs Uma Export Ltd. (CESTAT Kolkata)
Held that the importer is allowed to choose the more beneficial provision and cannot be forced to opt for / follow the non-beneficial provision. Accordingly, the goods in question Peas [Pisum Sativum] was present both in Sl No.20 and Sl No.20A of the basic Notification No.50/2017 Cus dated 30.6.2017 and hence assessee eligible to avail benefit of NIL rate of BCD.
Facts- The main issue involved in the present case is that whether during the period under review the goods in question, Pisum Sativum [Peas] falling under Customs Tariff Heading 0713 10 00, are required to be assessed @ NIL rate of BCD in terms of Sl No.20 as claimed by the importers or the goods are required to be assessed @50% rate of BCD in terms of Sl No.20A, as claimed by the Revenue.
Conclusion- In the present case, we observe that during the period 23.12.2017 to 28.02.2018, the goods in question Peas [Pisum Sativum] was present both in Sl No.20 and Sl No.20A of the basic Notification No.50/2017 Cus dated 30.6.2017 till the amendment vide Notification No.29/2018 Cus dated 1.3.2018 was carried out. Applying the case laws cited supra, the importers would be eligible to claim NIL rated BCD and file the consequent Refund claim. Accordingly, we hold that the importers have correctly sought Refund claim on the ground that they were not required to pay 50% BCD in the first place.
The High Courts and Tribunals have been consistently taking the view that the assessee is entitled for the more beneficial Notification, if there are two Notifications on the same issue.
Held that the importer is allowed to choose the more beneficial provision and cannot be forced to opt for / follow the non-beneficial provision.
FULL TEXT OF THE CESTAT KOLKATA ORDER
Since the issue is common in all these 7 Appeals, the Appeals filed by the Revenue and the Appeals filed by the appellants have been taken up together. Special Counsel Sri Mihir Ranjan made his submissions and argued on behalf of Revenue and Advocate Sri Amit Awasthi and others made their submissions and argued on behalf of the 2 Appellants and 5 Respondents.
2. Heard both side. Perused the written submissions made by both the sides.
3. The main grounds of Revenue’s arguments can be summarized as under :
A. Granting of refund of self-assessed Bills of Entry under Section 27 of the Customs Act is guided by the Supreme Court’s decision in the ITC Ltd Vs CCE. The Larger Bench of the Supreme Court in this case has overruled the decisions of Aman Medical and Micromax Informatics. Hence, the granting of the refund relying on these decisions by the Commissioner (Appeals) is erroneous.
B. Importers have not produced any evidence of getting the original assessment modified under Section 149 or Section 154 of the Customs Act 1962. But even filing any application under these Sections would not entitle them to file the refund claim under Section 27 of the Customs Act, 1962.
C. The importers have relied on the case law of Sun Exports to canvass that in case of ambiguity the more beneficial rate would be applicable to them. This interpretation has been rejected by the Hon’ble Supreme Court vide their judgement in the case of Commissioner of Customs (Import) Mumbai Vs Dilip Kumar.
D. The goods in question, Green Peas are correctly classifiable under CET 0713100 and as per the exemption Notification No.50/2017 Cus dated 30.6.2017 as amended by Notification No.84/2017 Cus, the BCD is payable @50%. The importers claim has no merits.
4. The Respondent/Appellant importers have countered the above grounds which are being discussed in the subsequent paragraphs.
5. The issue involved in the present appeals can be summarized as under :
(i) In the present case, the importers, on the ground that they are eligible for the refund claim, have filed the refund claims before the concerned authorities. Whether the present case calls for fulfilment of the condition of filing Appeals against the self-assessed Bills of Entry as a pre-requisite to entertain the refund claim as per the judgement in the ITC case by the Hon’ble Supreme Court being relied on heavily by the Revenue.
(ii) As to whether during the period under review the goods in question, Pisum Sativum [Peas] falling under Customs Tariff Heading 0713 10 00, are required to be assessed @ NIL rate of BCD in terms of Sl No.20 as claimed by the importers [two appellants and five respondents] or the goods are required to be assessed @50% rate of BCD in terms of Sl No.20A, as claimed by the Revenue. The conclusion is required to be drawn based on the joint and cohesive reading and interpretation of Notification No.50/2017 Cus dated 30.6.2017, as amended by Notification No.84/2017 Cus dated 8.11.2017, 93/2017 Cus dated 21.12.2017 and Notification No.29/2018 Cus dated1.3.2018.
(iii) If there is a scope to hold that the product may fall both under Sl No.20 as well as under Sl No.20A during the period under dispute. If so, as to whether the beneficial rate of BCD can be claimed by the importers or the same is not to be extended to them in terms of the Hon’ble Supreme Court’s judgement in the case of Dilip Traders as is being canvassed by the Revenue.
6. Coming to the first issue summarized as (i) above, the Revenue has also vehemently argued on account of the Bills of Entry not being subjected to Appeal proceedings in terms of Section 128 of Customs Act 1962 by the importers. They have cited the Hon’ble Supreme Court’s judgement in the case of ITC Vs CCE Kolkata IV – 2019 (368) SC 216 (SC). It would be important to go through the relevant portions of this judgement, which are extracted below :
38. No doubt about it that the expression which was earlier used in Section 27(1)(i) that “in pursuance of an order of assessment” has been deleted from the amended provision of Section 27 due to introduction of provision as to self-assessment. However, as self-assessment is nonetheless an order of assessment, no difference is made by deletion of aforesaid expression as no separate reasoned assessment order is required to be passed in the case of self-assessment as observed by this Court in Escorts Ltd. v. Union of India &Ors. (supra).
41. It is apparent from provisions of refund that it is more or less in the nature of execution proceedings. It is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise.
42. It was contended that no appeal lies against the order of self-assessment. The provisionsof Section 128 deal with appeals to the Commissioner (Appeals). Any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days. There is a provision for condonation of delay for another 30 days. The provisions of Section 128 are extracted hereunder :
“128. Appeals to [Commissioner (Appeals)]. — (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a [Principal Commissioner of Customs or Commissioner of Customs] may appeal to the [Commissioner (Appeals)] [within sixty days] from the date of the communication to him of such decision or order :
[Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.]
[(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing :
Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.]
(2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf.”
43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression „Any person‟ is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against “any order” which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra).
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, reassessment 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 reassessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India – 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra).
47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, 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.
7. Before we go into the applicability or otherwise of this judgement, the factual details of the present litigation are required to gone into. From the details provided by the appellants / respondents in their submissions, it is seen that all the refunds claims were rejected under different Orders In Original by the Adjudicating authority on the following grounds :
(a) The imported goods „Peas‟ were at Sl No.20A of the Notification No.50/2017 Cus dated 30.6.2017 as amended from time to time. Hence, the BCD was correctly charged / discharged @ 50%.
(b) The assessed Bills of Entry were are not challenged before the Commissioner (Appeals), which is required to be done as per Board Circular No.24/2004 dated 18.03.2004.
8. In respect of the refund claims filed by the importers, wherein the issue of non-challenging of the self-assesed Bills of Entry has been raised by the Revenue, the learned counsel appearing on behalf of the importers makes the following submissions :
a) Against the OIOs passed, all these importers filed their Appeals before the Commissioner (Appeals). In respect of 5 importers, the Commissioner (Appeals) allowed their Appeal, thereby allowing their refund claims. Agitated by the same the Revenue is before the Tribunal. In respect of 2 importers, the Commissioner (Appeals) has dismissed their appeals, thereby their refund claims have been rejected. Agitated by these OIAs, the 2 importers are before the Tribunal. Out 2 importers, whose refund claims have been rejected, one importer, ETC Agro Processing (India) Pvt. Ltd. [ETC for short] filed a Writ Petition No. 1848 of 2021 before the Hon’ble Calcutta High Court for a direction regarding maintainability of their Refund Claim. While disposing of the Writ petition vide order dated 5.2.2021, the Hon’ble High Court held and observed that “the pendency of the Writ petition will however not prevent the concerned authority from passing an order in the petitioner’s application for amendments of Bills of Entry, if any, made by the petitioners.”
b) In the light of the said observation of the Hon’ble High Court, the importer ETC pursued the application for amendment of their 4 Bills of Entry under Section 149 of the Customs Act 1962 which they had filed earlier. The Deputy Commissioner of Custom Appraising Group – I, Custom House, Kolkata videos his letter dated 28.04.2021, rejected the application/request for amendment of Bills of Entry. Referring to the Notification No. 93/2017 Cus dated 21.12.2017 which included Pulses other than Tur, Chickpeas or Masoor Lentils under Serial No. 20, the said Deputy Commissioner held that the imported goods yellow/ green peas will not fall under the amended Serial No. 20 of Notification No.50/2017 Cus dated 30.6.2017 attracting NIL rate of Basic Custom Duty. The Deputy Commissioner further held that on the date of importation i.e. 26.02.2018 the Notification No.84/2017 Cus dated 08.11.2017 was in force and the same was not withdrawn and therefore as per Serial No. 20A of the said amending Notification No.84/2017 Cus the rate of duty for peas (PisumSativum) should be @ 50 %. Accordingly, he rejected the reassessment request. He further held that the Bills of Entry were rightly assessed under Notification Serial No. 20A of Notification No.50/2017 Cus dated 30.6.2017 as amended by Notification No.84/2017 Cus dated 08.11.2017.
c) The learned Advocate submits that in his Order dated 28.4.2021, the Deputy Commissioner did not take any ground to the effect that the importer should have preferred an Appeal under Section 128 before the Commissioner (Appeals) and that no such re-assessment request / appeal cannot be entertained under Section 149 at his level. In this order the issue that the importers should have filed appeal under Section 128 of the Customs Act‟ 1962 for modifying the self-assessment, was not the ground on which the request for re-assessment was rejected. This by itself shows the Customs Department had no objection for entertaining the reassessment under Section 149 of Customs Act 1962.
d) In this connection, it is respectfully submitted that in the case of the two appellant importers and five respondent importers, they have approached the Custom Authorities for re-assessment under Section 149 of the Customs Act 1962[copies of their request letters have been filed along with Appeal papers]. Those were not been taken up for disposal except in the case of ETC, which was taken up probably only because of the High Court’s Order. The re-assessment requests of others went unresponded, thereby denying Natural Justice. This by itself,should be taken as meeting the criteria of challenging the self-assessed Bills of Entry.
e) In the case of the second appellant, Pratishtha Commercial Pvt Ltd., they had filed a letter towards re-assessment under Section 149 on 12.04.2018. They did not get any response during the next more than 5 months and filed the Refund claim on 28.9.2018 without the reassessment being carried out by the Customs Authorities. This refund claim was rejected on 15.1.2019 by way of Order in Original on the grounds specified above.
f) Similarly, it is submitted that all the other importers also had filed such re-assessment requests in terms of Section 149. In all such cases, they did not get any response. Such re-assessment requests were neither taken up for disposal, nor any communication was received as to why the requests are not being considered. Therefore, even they had no alternative, but to file the Refund claim without the re-assessment being done.
g) The factual matrix proves that it is not the case where the importers have directly filed the refund claim, without seeking any re-assessment under Section 149. It is on record that such requests have been made through letters which are duly acknowledged by the Department. The learned Advocate submits that the very fact that they have approached the Customs authorities for re-assessment under Section 149, would nullify the Revenue’s claim that the importer has not challenged the assessment of the Bills of Entry. It is erroneous to allege that no evidence was provided towards their attempt to get the Bills of Entry re-assessed under Section 149.
h) The CBIC vide its Circular No. 45/2020 – cus dated 12.10.2020 has advised that where re-assessment is requested after out-of-customs-charge has been given under Section 47 of the Customs Act, the same shall continue to be done by the port assessment group as was done earlier. In the instant case the importers had sought for amendment of the Bills of Entry for the purpose of re-assessment, which would then facilitate the importers to seek claim for refund. Therefore, filing application for amendment of the Bills of Entry for correction of inadvertent mistake or error and consequential passing of orders for re-assessment based on modification! amendment carried out was legal and valid, and the importers are entitled to the amendment and re-assessment.
i) He relied on the decision of the Madras High Court in M/s Hewlett Packard Enterprise India Pvt. Ltd. Vs. Joint Commissioner of Customs – 2021 (375) ELT 488 (Mad) and Usha International Limited Vs. Assistant Commissioner of Customs, Chennai, 2019 (365) ELT 56(MAD),wherein it has been held that in case of correction or inadvertent error, the appropriate remedy would be to seek an amendment to the Bills of Entry and not by way of filing of appeal. There is no legal flaw in the order of self-assessment amenable to appeal but only a factual mistake which can be rectified by way of amendment or correction when the power to make such amendment and or correction of mistakes ! errors has been conferred upon the Custom Authorities. He also relied on the judgement dated January 18, 2021 passed by the Hon’ble High Court, Bombay in the case of Dimension Data India Pvt. Ltd. Vs the Commissioner of Customs & Another, wherein the Supreme Court Judgement of ITC was considered in a detailed manner with regard to assessment and re-assessment.
j) He submits that even the ITC judgement does not make it mandatory to only file an Appeal under Section 128. The words used at Para 43 of the Judgment are “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, and Para 47 “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. Thus the judgement only speaks of ‘Modification’ to be carried out to the self-assessed Bill of Entry ‘modified under Section 128 or under other relevant provisions of the Act’. Therefore, there is absolutely no bar for the importer to seek re-assessment under Section 149.
k) Without prejudice to the submissions that the importers have fully met the criteria of challenging the assessment by making a request for reassessment, the Advocate also submits that during the period when the refund claims were filed, adjudicated and OIAs were passed, the appellants were fully supported by the decided case laws of various High Courts which were in force. At the time of filing the refund claims the importers followed the procedure as approved and considered as proper by various High Courts. The Board‟s Circular dated 18.03.2004 was time and again held as not applicable particularly in the case of self –assessed Bills of Entry.
l) In this respect, reliance has been placed on the following case laws :
a) Delhi High Court judgement dated 16.09.2009 in the case of AMAN MEDICAL PRODUCTS LTD. Versus COMMISSIONER OF CUSTOMS, DELHI (2010 (250) E.L.T. 30(Del.)
b) Delhi High Court judgement dated 26.02.2016 in the case of MICROMAX INFORMATICS LTD. Versus UNION OF INDIA (2016 (335) E.L.T. 446(Del.)
d) Tribunal (Mumbai) order dated 27.06.2016 in the case of C.C.(NS-III), JNCH, Nava-Sheva versus Physical Research Laboratory (2017 (357) E.L.T. 475 (Tri- Mumbai)
e) Tribunal (Bangalore) order dated 24.10.2017in the case of Excel glasses Limited versus Commissioner of Customs, Cochin (2018 (360) E.L.T. 953 (Tri- Bang.)
f) Tribunal (Mumbai) order dated 06.03.2017 in the case of Zenith Computers Limited versus Commissioner of Customs, Goa (2017 (358) E.L.T. 1125 (Tri- Mumbai)
g) Tribunal (Kolkata) order dated 23.08.2016 in the case of Liebherr India Private Limited versus Commissioner of Customs (Port), Kolkata (2017 (358) E.L.T. 656 (Tri- Kolkata)
m) Further he submits that the Customs Department has been issuing Public Notices on the issue of reassessment and refunds. In this regard kind reference is invited to the Public Notice No. 65/2018 dated 11.09.2018 issued by the Chennai Customs. It has been clarified in the said Public Notice that the refund claim should be forwarded to the appraising group and that based on their report for re-assessment, the refund claim is to be allowed or rejected. In the instant case of importers, the revenue should have followed this procedure particularly taking into account that importers have also filed their request letters for reassessment by way of applications under Section 149 of the Customs Act1962. Therefore, the principle of natural justice was compromised in the instant case of importers.
9. After going through the factual details submitted by the appellants/respondents, the factual details can be summarized as under:
(a) Initially they have self-assessed the Bills of Entry by paying BCD of 50% for the Peas [PisumSativum], in terms of Sl No.20A of Notification No.50/2017 Cus dated 30.6.2017 as amended by Notification No.84/2017 Cuss dated 8.11.2017.
(b) After Notification No.50/2017 Cus dated 30.6.2017 was amended by way of Notification No.29/2018 Cus dated 1.3.2018, they have noticed that the product was mentioned both at Sl No.20 as well as at Sl No.20A.
(c) As per the interpretation of the importesr, they would be eligible to seek the refund of 50% BCD paid by them.
(d) At that point of time, High Courts and Tribunals have been taking consistent view that in case of self-assessment, no Appeal or re-assessment is required and the refund claim can be directly lodged. However, the Board Circular No.24/2004 dated 18.03.2004 specified that re-assessment is pre-requisite if the refund claim is to be entertained.
(e) The importers have filed their applications for reassessment in terms of Section 149 of the Customs Act 1962 before the Appraising Authorities. While 6 of the importers have done so on their own, one party [ETC] had approached the High Court by way of Writ Petition. After the Writ Petition was disposed off by the High Court, they have filed their request letter under Section 149. [Page No.57-64 of the Synopsis]
(f) The request of ETC was rejected on the ground that the goods were correctly assessed for BCD in terms of Sl No.20A of the Notification No.50/2017 Cus dated 30.6.2017.
(g) The rejection was not on the count that the importer should have filed an Appeal in terms of Section 128 of the Customs Act 1962 against the self-assessed Bills of Entry.
(h) Therefore, here it is case of direct admittance by the Revenue that the re-assessment request under Section 149, is in the nature of Appeal and the same was rejected. Therefore, in the case of ETC, the Revenue is precluded from taking the stand that they have not filed any appeal so as to reject the refund claim.
(i) In case of 6 importers, even after receiving their request letter, the Appraising Dept. neither allowed their request, nor rejected the same but simply kept them in abeyance. Principles of natural justice requires the Appraising Dept. to respond to the reassessment request. If the same is not being entertained on the ground that the appeal has to be filed before Commissioner (Appeals) in terms of Section 128, the applicant is required to be informed of the same. The Dept. cannot simply keep quiet allowing the time limit to file the refund to expire. As observed supra, no objection on this count was raised in the Order passed in respect of of ETC‟s re-assessment request made under Section 149. In respect of the balance 6 importers, against their request for re-assessment under Section 149, neither the same was rejected nor were they directed to file the Appeal in terms of Section 128.
10. During the period in question, the following decisions of the High Court and Tribunals were clearly holding that no re-assessment was required :
AMAN MEDICAL PRODUCTS LTD. Vs COMMISSIONER OF CUSTOMS, DELHI 2010 (250) E.L.T. 30 (Del.)
6. We, therefore, answer the question framed by holding that the refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub-section (1) of Section 27.
MICROMAX INFORMATICS LTD. Vs UNION OF INDIA 2016 (335) E.L.T. 446 (Del.)
13. As far as the present case is concerned, there was indeed no assessment order as such passed by the customs authorities. Although under Section 2(ii) of the Act, the word ‘assessment’ includes a self-assessment, the clearance of the goods upon filing of the B/E and payment of duty is not per se an ‘assessment order’ in the context of Section 27(1)(i) as it stood prior to 8th April, 2011, particularly if such duty has not been paid under protest. In any event, after 8th April, 2011, as noticed hereinbefore, as long as customs duty or interest has been paid or borne by a person, a claim for refund made by such person under Section 27(1) of the Act as it now stands, will have to be entertained and an order passed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal.
MICROMAX INFORMATICS LTD. Vs UNION OF INDIA 2019 (369) E.L.T. 543 (Bom.)
27. It can thus be seen that there have been significant statutory amendments in Sections 17 and 27 by virtue of the Finance Act, 2011. Earlier procedure of filing of bill of entry by importer and its assessment by the competent authority has been replaced by the self-assessment to be made by the importer while filing the bill of entry and the competent authority only passing a speaking order of reassessment in case where he finds that the self assessment made by the importer is not correct. It is therefore, that even in Section 27 of the Act, the procedure for claiming refund has been suitably modified. Instead of referring to claim of refund of duty or interest paid in pursuance of the order of assessment or borne by him, the amended Section 27 merely refers to the claim of refund of duty or interest paid or borne by the refund claimant.Thus, earlier reference to the refund of duty or interest paid pursuant to an order of assessment is now deleted. This would be in consonance with the changed procedure for clearance of imported goods as contained in Section 17 of the Act.
30 ………….. We may also record that the Counsel for the Department had referred to Section 149 of the Act and contended that it was open for the Petitioner to have bill of entries amended. Section 149 of the Act provides that a proper officer may at his discretion authorize a document after it is presented in the Custom House to be amended.
ZENITH COMPUTERS LTD. Vs COMMISSIONER OF CUSTOMS, GOA 2017 (358) E.L.T. 1125 (Tri. – Mumbai)
4.2 Another ground for denying the refund by the Commissioner (Appeals) is that that the appellant have not challenged the assessment order and, hence, they would not be eligible for refund of duty paid. We find that in the regime of self-assessment, the scope for grievance and filing of appeal is non-existent, as non-filing of appeal against the assessment of the Bill of Entry does not deprive the assessee the right to file refund as has been held by the Tribunal in the case of Commissioner v. Physical Research Laboratory – 2016-TIOL-3037-CESTAT-MUM = 2017 (357) ELT 475 (Tri. Mum.). We further find that filing of refund claim itself is challenge of Bills of Entry.
11. The Aman Medical Product decision pertains to pre-amendment provisions and has been held as not correct by the Apex Court in the ITC case. The Micromax decisions of 2016 and 2019 considered the amended provisions of Section 27 to arrive at the decisions. During the period under dispute the importers were without doubt covered by these decisions since the ITC judgement was rendered by the Supreme Court subsequently.
12. In these decisions, it was held in respect of self-assessed Bills of Entry, the importers were not even required to file any application for re-assessment as was being directed vide the Board Circular 24/2004 Cus dated 18.3.2004. These decisions had effectively overruled the Board Circulars. Further it is seen in the second Micromax case, the Revenue itself has adduced argument to the effect that the importer should have resorted to Section 149 for re-assessment of the self-assessed Bills of Entry. In the present case, by documentary evidence the importers have proved that they have made the efforts to get the self-assessed Bills of Entry re-assessed as per the factual matrix observed above.
13. It leads us to the issue as to whether the re-assessment request under Section 149 would meet the requirement of filing of Appeal, because the Hon’ble Supreme Court in the ITC case cited supra has held that before the refund claim is entertained, Appeal has to be filed against the self-assessed Bills of Entry. This issue, including the Supreme Court’s ruling in the case of ITC has been gone into in the following case :
DIMENSION DATA INDIA PVT. LTD. Vs COMMISSIONER OF CUSTOMS 2021 (376) E.L.T. 192 (Bom.)
12. In reply, learned counsel for the petitioner has distinguished the decision of the Supreme Court in ITC Limited (supra) and submits that Central Government itself had issued notification way back on 02.05.2012 being Notification No. 40/2012 which was amended in the year 2017 by empowering offers of the rank of Deputy Commissioner or Assistant Commissioner of Customs to exercise functions under section 149 of the Customs Act after grant of order for clearance of goods under section 47 or section 51 of the said Act as the case may be. From the compilation, he has pressed into service decision of the Kerala High Court in GTN Textiles Limited vs. Union of India and that of the Madras High Court in Usha International Ltd. Vs. Assistant Commissioner of Customs, Chennai 2019 (365) E.L.T. 56 (Mad) in support of his contention that in a case of this nature, it is not necessary to prefer appeal when power to make corrections of inadvertent mistakes or errors leading to re-assessment has been conferred upon the authorities. Finally, he places reliance on the decision of the Madras High Court in M/s Hewlett Packard Enterprise India Private Limited Vs. Joint Commissioner of Customs,5 in which case it has been specifically held that in a case of this nature, appropriate remedy is not that of appeal but rectification of an error apparent on the face of the record which existed at the time of clearance of the goods
15.2. Thereafter, comes sub-section (4). Sub-section (4) is relevant. It empowers the proper officer to go for re- assessment if he finds on verification etc. that self- assessment was not done correctly. The same is extracted hereunder:
“(4) Where it is found on verification, examination or testing of the goods or otherwise that the self- assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods.”
14. Thus, the scheme of section 17 from the perspective of the importer (since in this case we are dealing with imports) is that an importer upon entering his imported goods is required to self-assess the duty leviable on such imported goods. This is subject to verification and examination by the proper officer. If upon verification or examination etc. the proper officer finds that the self-assessment is not done correctly, he may re-assess the duty leviable on such goods. In a case where re-assessment is contrary to self-assessment and where the importer does not confirm his acceptance of such re-assessment, the proper officer shall pass a speaking order on the re- assessment. Therefore, it is quite evident that though duty is cast upon an importer to self-assess the customs duty leviable on the imported goods, a corresponding duty is also cast upon the proper officer to verify and examine such self-assessment. Such verification and examination have to be done in good faith and in the process of verification or examination if the proper officer finds that there is misclassification of tariff head or wrong classification of tariff head of the imported goods leading to lesser levy of customs duty or excess levy of customs duty, he has the power and authority under sub-section (4) to make reassessment and re-assess the duty leviable on such goods.
15. From a careful analysis of section 149, we find that under the said provision a discretion is vested on the proper officer to authorise amendment of any document after being presented in the customs house. However, as per the proviso, no such amendment shall be authorised after the imported goods have been cleared for home consumption or warehoused, etc. except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, etc. Thus, amendment of the Bill of Entry is clearly permissible even in a situation where the goods are cleared for home consumption. The only condition is that in such a case, the amendment shall be allowed only on the basis of the documentary evidence which was in existence at the time of clearance of the goods.
16. Having noticed and analysed the relevant legal provisions, we may now turn to the decision of the Supreme Court in ITC Ltd. Vs. Commissioner of Central Excise, Kolkata IV (supra). The question which arose before the Supreme Court was whether in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty could be entertained.
17. From the question itself, it is clear that the issue before the Supreme Court was not invocation of the power of re-assessment under section 17(4) or amendment of documents under section 149 or correction of clerical mistakes or errors in the order of self-assessment made under section 17(4) by exercising power under section 154 vis-a-vis challenging an order of assessment in appeal. The issue considered by the Supreme Court was whether in the absence 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).
18. In the instant case, petitioner has not sought for any refund on the basis of the self-assessment. It has sought re-assessment upon amendment of the Bills of Entry by correcting the customs tariff head of the goods which would then facilitate the petitioner to seek a claim for refund.
19. Madras High Court in M/s. Hewlett Packard Enterprise India Private Limited (supra) correctly held that in a case of correction of inadvertent error, the appropriate remedy would be seeking an amendment to the Bills of Entry and not fling of appeal because there is no legal flaw in the order of self-assessment amenable to appeal but only a factual mistake which can be rectified by way of amendment or correction. Such correction or amendment has been sought for by the petitioner on the basis of documents which were already in existence at the time of release of the goods for home consumption.
20. The expression “mistake” appearing in section 154 of the Customs Act may be defined as something done unintendedly or through inadvertence. The section itself says that the error in any decision or order should be due to any accidental slip or omission. Moreover, it can be a mistake of law or a mistake of fact. In all cases it need not be an arithmetical error alone. It may connote errors which can be discerned upon due verification. Having said so, we may also indicate that power to amend documents available under section 149 of the Customs Act read with correction of clerical or arithmetical mistakes or errors in orders due to accidental slip or omission under section 154 thereof is different and distinct from the appellate power exercised under section 128 of the Customs Act. The power of amendment or correction, as the case may be, is vested on the same officer who had passed the initial order or an officer of equivalent rank. On the other hand, appellate jurisdiction is directed to correct decisions or orders passed by an inferior or lower authority. By its very nature an appellate authority is superior to the authority which had passed the order appealed against.
21. This judgement after considering the Supreme Court‟s decision of ITC with detailed analysis, clearly holds that the self-assessed Bills of Entry can be entertained for re-assessment under Section 149. It holds that there is no specific requirement for an Appeal under Section 128 and relies on the decision of ITC. Against this decision of Bombay High Court, the Revenue filed SLP, which has been dismissed by the Supreme Court as reported in –Commissioner v. Dimension Data India Private Ltd. – 2022 (379) E.L.T. A39 (S.C.)
22. Further, even in the ITC case, the Supreme Court has held
“…… .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”. Therefore, it is clear that this judgement does not hold that it is mandatory to file an Appeal under Section 128 to get challenge the self-assessment, as is being canvassed by the Revenue in these appeals. Since the words used are „or under other relevant provisions of the Act‟, the Bombay HighCourt has heldthat the re-assessment is permissible under Section 149 and is required to be taken as fulfilment of Appeal condition specified in the ITC for filing the refund claims.
23. To summarize our observations on the applicability of ITC case canvassed by the Revenue :
(a) During the period under dispute, the ITC judgement was not rendered. In respect of self-assessed Bills of Entry, the importers were guided by the then prevailing High Court and Tribunals decision, which held that no re-assessment is required. The Board Circular of 2004 had no legal validity since these decisions of High Courts and Tribunals held that no Appeal is required to be filed in respect of self-assessed Bills of Entry.
(b) The factual matrix proves that the importers have sought re-assessment under Section 149 as discussed in detail supra. In the only Order passed in respect of such a request, no ground was taken to the effect that against the self-assessed Bill of Entry only Appeal only under Section 128 should have been preferred.
(c) As discussed supra, the importers have filed their request for re-assessment in terms of Section 149 [Page Nos.86 to 98 of the Synopsis]. In one case the request was rejected and in other cases, the Revenue did not respond. Hence, it is not a case where the importers have not sought to get the self-assessed Bills of Entry re-assessed.
(d) In the Micromax 2019, the Revenue itself has argued that the importer could have got the self-assessed Bill of Entry reassessed under Section 149.
(e) The Mumbai High Court and Madras High Court have held that Section 149 can be used for re-assessment of self-assessed Bills of Entry. The SLP filed against the Mumbai High Court’s decision has been dismissed by the Supreme Court. Hence, this issue has reached finality.
24. In view of these observations, we hold that in the present case the judgement of Hon’ble Supreme Court in the ITC case is not applicable. Therefore, we reject the stand of the Revenue that the appellants have not filed any appeal against the self-assessed Bills of Entry.
25. The next issue to be addressed is about the rate of BCD applicable for the Pisum Sativum during the period under in question. The Learned Advocate submits that the correct applicability of the Serial Number of the Basic Notification No.50/2017 Cus dated 30.6.2017 is to be interpreted by way of proper reading of the Notifications issued in this regard. The following Table captures the amendments carried out to this Notification, which are relevant to the present Appeals :
