Custom, Excise & Service Tax Tribunal
H &Amp; R Johnson (India) vs Cc (Import) Nhavasheva on 1 November, 2019
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, MUMBAI
REGIONAL BENCH
Customs Appeal No. 86283 of 2013
(Arising out of Order-in-Appeal No. 711 & 712
(Gr.III)2012(JNCH)/IMP-595 & 596 dated 11.12.2012 passed by
Commissioner of Customs (Appeals), JNCH, Nhava Sheva)
M/s. H & R Johnson (India) Appellant
Windsor, 7th floor,
CST Road, Kalina,
Santacruz (E),
Mumbai 400 098.
Vs.
Commr. of Customs (I), Nhava Sheva Respondent
Jawaharlal Nehru Custom House, Post Uran, Dist. Raigad, Sheva 400 707.
WITH Customs Appeal No. 86284 of 2013 (Arising out of Order-in-Appeal No. 711 & 712 (Gr.III)2012(JNCH)/IMP-595 & 596 dated 11.12.2012 passed by Commissioner of Customs (Appeals), JNCH, Nhava Sheva) M/s. H & R Johnson (India) Appellant Windsor, 7th floor, CST Road, Kalina, Santacruz (E), Mumbai 400 098.
Vs. Commr. of Customs (I), Nhava Sheva Respondent Jawaharlal Nehru Custom House, Post Uran, Dist. Raigad, Sheva 400 707.
Appearance:
Shri Akhilesh Kangsia, Advocate, for the Appellant Shri Dharmender Singh, Authorised Representative for the Respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Hon'ble Mr. Sanjiv Srivastava, Member (Technical) FINAL ORDER NO. A/86984-86985/2019
2 C/86283,86284/2013 Date of Hearing: 26.07.2019 Date of Decision: 01.11.2019 PER: SANJIV SRIVASTAVA These appeals are directed against Order in Appeal No 711 & 712 (Gr. III)/ 2012 (JNCH)/IMP-595 & 596 dated 11.12.2012. By the impugned order Commissioner (Appeals) has rejected the appeal filed by the appellants against assessment of Bills of Entry Nos 4941613/17.10.2011 & 5082095/ 02.11.2011, stating as follows:
"10. In view of the aforesaid facts and circumstances and relying on the aforesaid decision, I hold that appellants cannot challenge their self assessment before the Commissioner appeals as it is outside the ambit of section 128 of the Customs Act, 1962."
2.1 Appellants had filed two Bill of Entries No 4941613 dated 16.12.2011 and 02.11.2011. The goods imported were self assessed by the appellant and CVD assessed and paid on the basis of MRP. Subsequent to the clearance of the goods so self assessed, they realized that they had paid the duty in excess of actual payable for the reason that while making the assessment they had taken the MRP/ sq mtr instead of MRP/ Box.
2.2 Since they had assessed the said Bill of Entries themselves and paid the duty accordingly, they filed the appeal before the Commissioner (Appeal) to modify the assessment so that they can claim the refund of excess duty paid.
2.3 The appeal was filed as Hon'ble Supreme Court has in case of Priya Blue Industries Ltd 2004 (172) ELT 145 (SC)] laid down the law stating that in case of incorrect assessment resulting in excess payment of duty, refund can be processed only if the assessment order is set aside.
3 C/86283,86284/2013 2.4 After hearing the appellants Commissioner appeal by relying on the decisions in case of Premier Agencies [2010 (18) STR 668 (T-Mum)], Nagpur Transwell Power P Ltd [2009 (243) ELT 459 (T-Mum)] and Gimatex Industries Pvt Ltd [2010 (261) ELT 1026 (T-Mum)] rejected the appeals filed.
2.5 Aggrieved by the impugned order, appellants have filed this appeal.
3.1 We have heard Shri Akhilesh Kangsia, Advocate for the appellants and Shri Dharmender Singh, Superintendent, Authorized Representative for the revenue.
3.2 Arguing for the appellants learned advocate submitted that-
Hon'ble Apex Court while dealing with un amended Section 17 and 47 of Customs Act, 1962 has in case of Escorts Ltd [1994 Sup. 3 SCC 86, has held that the Act does not prescribe any particular form in which the assessment is to be made. The B/E presented by the importer and signed by the assessing officer itself is an assessment order. After amendments made by the Finance Act, 2011, 08.04.2011, the third proviso was inserted in Section 47 providing that out of charge i.e. permitting clearance of goods for home consumption under Section 47 of Customs Act, 1962 made electronically is also an order. Such order made electronically also signifies approval of assessing officer and hence it is also an order of assessment.
Larger Bench of Tribunal has in case of Arvind Exports [2001 (130) ELT 54 (T-LB)] held that assessing officer allowing clearance of goods for home consumption under section 47 is an order and such order cannot be reviewed or altered by the assessing officer, therefore, if such assessment is to 4 C/86283,86284/2013 be varied, it should be challenged before the appellate authority.
The self assessed Bill of Entry is also appealable as has been held by the tribunal in following cases, by placing reliance on the decision of Hon'ble Bombay High Court in case of Maharashtra Cylinders [2019 (259) ELT 369 (Bom)]:-
o Honeywell Automation India Ltd [Final Order No A/88639/16/SMB dated 21.01.2016 o Sri Vasai Gold & Bullion [2016 (343) ELT 429 (T-Chennai)] o CIPLA [2017 (348) ELT 579 (T-Del)] Issue is now settled by the decision of the Apex Court in case of ITC Limited [Judgement dated 18.09.2019 in the Civil Appeal No 293-294 of 2009].
3.3 Arguing for the revenue learned Authorized Representative reiterated the findings in the impugned order.
4.1 We have considered impugned order along with the submissions made in appeal and during the course of arguments on appeal.
4.2 Hon'ble Supreme Court has in case of M/s ITC (Civil Appeal No 293-294/ 2009 Order dated 18.09.2019) held as follows:
"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
5 C/86283,86284/2013 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 reassessment 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 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 6 C/86283,86284/2013 Cycles Ltd. v. Union of India 2009 (240) ELT 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).
45.Reliance was also placed on a decision of Rajasthan High Court with respect to service tax in Central Office Mewar Palace Org. v. Union of India 2008 (12) STR 545 (Raj.). In view of the aforesaid discussion, we are not inclined to accept the reasoning adopted by the High Court, that too is also not under the provisions of the Customs Act.
46.The decision in Intex Technologies (India) Ltd. v. Union of India has followed Micromax (supra). The reasoning employed by the High Courts of Delhi and Madras does not appear to be sound. The scope of the provisions of refund under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128.
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."
4.3 We are in agreement with counsel for appellant that the issue is squarely covered by the said decision of Apex Court. Since Commissioner (Appeals) has not decided the 7 C/86283,86284/2013 issue on merit and had disposed of the appeal stating that appeal do not lie against self assessment made, the matter needs to be remanded back for consideration of issues on merit.
5.1 In view of the decision of Hon'ble Apex Court referred above we allow the appeals filed by the appellant and remand the matter back to Commissioner (Appeals) for consideration of appeals on merits.
(Order pronounced in the open court on 01.11.2019) (S.K. Mohanty) Member (Judicial) (Sanjiv Srivastava) Member (Technical) tvu