Custom, Excise & Service Tax Tribunal
Ms Samsung India Electronics Pvt Ltd vs Commissioner Of ... on 24 January, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, MUMBAI
REGIONAL BENCH
Customs Miscellaneous Application (EH) No. 85817 of
2022
(On behalf of Appellant)
Customs Appeal No. 87908 of 2017
(Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated
24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III)
Samsung India Electronics Pvt. Ltd. Appellant
20th to 24th Floor, Two Horizon Centre,
Golf Course Road, Sector 43, DLF, Phase V,
Gurgaon, Haryana 122 002.
Vs.
Commissioner of Customs (Air Cargo Import) Respondent
Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85818 of 2022 (On behalf of Appellant) Customs Appeal No. 87910 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85819 of 2022 (On behalf of Appellant) Customs Appeal No. 87911 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
2 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85820 of 2022 (On behalf of Appellant) Customs Appeal No. 87913 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85821 of 2022 (On behalf of Appellant) Customs Appeal No. 87914 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85822 of 2022 (On behalf of Appellant) Customs Appeal No. 87915 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 3 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85823 of 2022 (On behalf of Appellant) Customs Appeal No. 87916 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant th th 20 to 24 Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85824 of 2022 (On behalf of Appellant) Customs Appeal No. 87917 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85825 of 2022 (On behalf of Appellant) Customs Appeal No. 87918 of 2017 4 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85826 of 2022 (On behalf of Appellant) Customs Appeal No. 87920 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85827 of 2022 (On behalf of Appellant) Customs Appeal No. 87921 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH 5 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 Customs Miscellaneous Application (EH) No. 85828 of 2022 (On behalf of Appellant) Customs Appeal No. 87923 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85829 of 2022 (On behalf of Appellant) Customs Appeal No. 87924 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
WITH Customs Miscellaneous Application (EH) No. 85830 of 2022 (On behalf of Appellant) Customs Appeal No. 87925 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
6 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 AND Customs Miscellaneous Application (EH) No. 85831 of 2022 (On behalf of Appellant) Customs Appeal No. 87926 of 2017 (Arising out of Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III) Samsung India Electronics Pvt. Ltd. Appellant 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF, Phase V, Gurgaon, Haryana 122 002.
Vs. Commissioner of Customs (Air Cargo Import) Respondent Mumbai Air Cargo Complex, Sahar, Andheri (E), Mumbai 400 009.
Appearance:
Shri Rahul Sateeja, Advocate, for the Appellant Shri Sydney D'Silva, Additional Commissioner, Authorised Representative for the Respondent CORAM:
HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) HON'BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Date of Hearing: 24.01.2023 Date of Decision: 24.01.2023 FINAL ORDER NO. A/85114-85128/2023 PER: SANJIV SRIVASTAVA These appeals are directed against Order-in-Appeal No. S/49-318 to 332/2015/ACC dated 24.08.2017 passed by the Commissioner of Customs (Appeals), Mumbai-III. By the impugned order, Commissioner (Appeals) has decided the appeals as detailed below:-
Sr. Appeal No. Bill of entry Bill of entry Date of filing
No. No. filing date appeal
S/49-
1. 318 9266856 18.05.2015 25.06.2015
2. 319 9287752 19.05.2015 25.06.2015
3. 320 9298556 20.05.2015 25.06.2015
7 C/ 87908,87910,87911,87913-87918,87920,
87921,87923-87926/2017
4. 321 9325023 22.05.2015 25.06.2015
5. 322 9369106 27.05.2015 25.06.2015
6. 323 9298561 20.05.2015 25.06.2015
7. 324 9298553 20.05.2015 25.06.2015
8. 325 9156432 07.05.2015 25.06.2015
9. 326 9156419 07.05.2015 25.06.2015
10. 327 9277489 19.05.2015 25.06.2015
11. 328 9432888 02.06.2015 25.06.2015
12. 329 9298550 20.05.2015 25.06.2015
13. 330 9284704 19.05.2015 25.06.2015
14. 331 9429059 02.06.2015 25.06.2015
15. 332 9346584 25.05.201 25.06.2015
1.2 Appeals filed by the appellant have been disposed of
stating as follows:-
"21. Under the circumstances, ideally the appellant should have preferred provisional assessment or the Proper Officer should have issued a speaking order if there is interference with the self assessment made by the appellants. As per the Law settled by the High Court (supra), an appeal can be filed by the appellant only after obtaining a speaking order from the lower authority and the bill of entry cannot be equated with the decision or order under section 128 ibid. Section 27 also provides that any person may file refund claim if any duty is paid or borne by him.
Accordingly all the 15 appeals are disposed off with the observation that the appellant should first exhaust the remedy available before him under section 17, 18 or section 27 of Customs Act. 1962 and challenge the "Speaking Order" and/ or Refund Order passed by the Assistant Commissioner / Deputy Commissioner if not satisfied in any manner under section 128 ibid."
8 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 2.1 Appellant has filed the appeals before Commissioner (Appeals) seeking revision of the self-assessment made by them for the clearance of the goods imported by them against the Bills of Entry detailed in table above. Undisputedly the Bills of Entry were self-assessed and subsequently cleared as per the self- assessment made by the appellant.
2.2 Later on, appellant realized that Hon'ble Supreme Court has vide order dated 26.03.2015 in the case of SRF Ltd., allowed the benefit of Notification No. 06/2002-CE dated 03.03.2002 (Sr.No. 122) wherein exemption was granted from payment of central excise duty to certain textile fibres subject to the condition that no Cenvat credit has been taken under Cenvat Credit Rules, 2002.
2.3 On the basis of the above order, realizing that the appellant has wrongly assessed the goods while making self- assessment, they filed appeals before the Commissioner (Appeals) and have prayed that the assessing authorities should be directed to extend the benefit of CVD @ 1% under condition 16 of Sr. No. 263A of Notification No. 12/2012-CE dated 17.03.2012 as amended by Notification No. 12/2015-CE dated 01.03.2015. Commissioner (Appeals) vide the above order has disposed of the appeals as above. Aggrieved appellant is in appeal.
2.4 Appellant has also filed early hearing applications in each of the appeals filed.
3.1 We have heard Shri Rahul Sateeja, Advocate for the appellant and Shri Sydney D'Silva, Additional Commissioner, Authorised Representative for the Revenue.
3.2 Arguing on the application for early hearing, learned counsel submits that the issue has not been considered by the Commissioner (Appeals) on merits and the appeals have been disposed of in the manner as stated above. However, the said order passed by the Commissioner (Appeals) is contrary to the decision of Hon'ble Apex Court in the case of ITC Ltd. [2019 (368) ELT 216 (SC).
9 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 3.3 Learned AR reiterates.
4.1 Having considered the applications for early hearing, the same are allowed and with the consent of both sides, appeals are taken up for hearing.
5.1 Heard both sides on the appeals.
5.2 Learned counsel submits that:-
After the decision of Hon'ble Supreme Court in the case of ITC Ltd., self-assessment order is an assessment order and needs to be challenged before the appropriate appellate authority and needs to be set aside before any refund application can be processed.
In view of the above, the order of the Commissioner (Appeals) cannot be sustained and the matter has to be considered by Commissioner (Appeals) on merits. Accordingly he prays that the matter be remanded back to the Commissioner (Appeals).
5.3 Learned AR reiterates the findings recorded in the impugned order.
6.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments.
6.2 While disposing of the appeals, Commissioner (Appeals) has observed as follows:-
"5. I have carefully gone through the facts of the case and submissions made by the appellant. It appears that the appellants had cleared total 15 bills of entries and all of them were cleared under self-assessment scheme introduced with effect from 08.04.2011 without any intervention of proper officer of Customs as provided under section 17 of Customs Act, 1962. I find that the appellant had informed the Proper officer about payment of 12.5% of CVD under protest and had requested for issuance of speaking order. The instructions issued vide CBEC Circular 17/2011 dated 08.04.2011 prescribes that the importer 10 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 at the time of self-assessment will ensure that they declares the correct description, classification, applicable rate of duty, value, benefit of exemption notifications claimed, if any, in respect of the imported goods while presenting bill of entry and themselves assess the Customs duty liveable, if any, on the imported TE goods. In this way with effect from 08.04.2011, self-assessment has become the norm of assessment of Customs duty in respect of imported goods.
6. The CBEC Circular No. 17/2011 dated 08.04.2011 and Self- Assessment Manual further provides that in cases, where the importer is not able to determine the duty liability / make assessment for any reason, a request shall be made to the proper officer for assessment of the V 2017nder Section 18(a) of the Customs Act. 1962. Thus the importer is responsible for self- assessment of duty on imported goods and if the importer is unable to do the self-assessment became of any complexity, lack of clarity, lack of information etc.: be may apply in writing to the Assistant Deputy Commissioner in charge of Appraising Group to allow provisional assessment. Further Sections 17(2) and 17(3) of the Customs Act, 1962 provide for verification of the self- assessment by the proper officer of Customs. After verification, based on the merits of the case, the proper officer may either accept the self-assessment or initiate the process of reassessment as described under Section 17(4) of the Act, 1962. On the basis of verification or for any other reason, if the proper officer of Customs is of the opinion that the self-assessment of duty done by the importer is not correct in any respect viz misclassification, overvaluation. exemption etc, the proper officer of Customs may re-assess the duty. If the re-assessment is not accepted by the importer in writing, the proper officer may issue a speaking order within 15 days of assessment order.
7. I further find that in terms of Section 128 (1) of Customs Act, 1962 "Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a 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".
11 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 Therefore primary requirement of filing an appeal under Section 128 of the Act are as follows:
(a) Person filing appeal should be aggrieved of any 'decision or order.
(b) The 'decision or order should have been passed under the Customs Act 1962.
(c) The 'decision or order should have been passed by an officer of customs lower in rank than a Commissioner of Customs.
Therefore to make any appeal before Commissioner (Appeals), there must be an order passed by an officer of Customs under Customs Act, 1962.
8. I find that in case of HDFC Bank Limited vs. Union of India reported at 2011 (271) EDX 175 (Ker) it is held that:
"Clearly of Entry is not a decision or order contemplated under Section 128. It can only be an order under Section 17(5) which has to be a speaking order. When admittedly there is no speaking order passed by the 3rd respondent in this case, the petitioner is entitled to get a speaking order against which he can file an appeal within the period prescribed under Section 128 from the date of communication of that order to them.
Further in case of Zuari Agro Chemicals Limited vs. Union of India (Civil Writ Petition No. 14794 of 2013), Hon'ble Bombay High Court has held that:
"remedy under Section 128 ibid is available only when an order has been passed with reasons- It is for this reason that Section 17(5) ibid requires the passing of a speaking order when authority finally assessed the Bill of Entry in a manner contrary to the claim of the importer"
9. It is also worth noting that after introduction of self- assessment in terms of Section 17(1) ibid vide Finance Bill, 2011, simultaneous changes were made in Section 18 (1) (a) 12 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 ibid which prescribes that where the importer is unable to make self-assessment under sub-section (1) of Section 17 ibid and importer makes a request in writing to the proper officer for assessment, the proper officer may order for provisional assessment. In line with the same analogy (self assessment), Section 27ibid was amended to enable the importer to file refund claim if any duty is paid by him or borne by him. Prior to 08.04.2011, refund claim was admissible in respect of duty which was paid in pursuance of any order of assessment. If there is an order of assessment by a proper officer, it is subject to challenge by way of appeal as well.
10. I find that in the case before me, the appellants had never represented before the proper officer of Customs for any clarity or provisional assessment or re-assessment as regards to payment of CVD or applicability of Excise Exemption Notification 12/2012-CE dated 17.03.2012,Sr.No. 263A, condition No. 16 and the duty was being paid without any protest on the self- assessed bills of entries prior to 26.03.2015, But after judgment dated 26.03.2015 in case of SRF Ltd - 2015 (318) E.LT. 607 (S.C.), the appellant claimed benefit of Excise Exemption Notification 12/2012-CE dated 17.03.2012.Sr.No. 263A, condition No. 16(as amended vide CE Notification 04/2014 dated 17.02.2014) and paid the duty @ 12.5% under protest. The appellant has filed appeals against these 15 bills of entries requesting to direct the lower authorities for issuance of speaking order and extend the benefit of Excise Exemption Notification 12/2012- CE dated 17.03.2012,Sr.No. 263A, condition No. 16. In support of the contention that the benefit of exemption notification can be claimed at belated stage, they have referred certain judgements in the written submissions.
11. I find that in case of Share Medical Care the importer had claimed Notification No. 64/88-Cus Sr. No. 2 and later claimed Sr. No. 3 also which was denied by DGHS and in this background the Apex Court observed that if appellant is entitled for Para 3 instead of Para 2 of the same Notification, it cannot be denied. The case of Unichem Laboratories was covered under Central Duties of Excise (Retrospective Exemption) Act, 1986 and 13 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 therefore the Exemption under Notification No. 234/86-CE, dated 3-4-1986 was allowed where classification list was led 1-3-1986 after coming into force of the new Central Excise Tariff Act, 1985 for bulk drugs falling under sub-heading 2913.00. In case of Hero Cycles, where same exemption was granted to the goods prior to and subsequent to clearance of the present case before the Tribunal, but by mistake / oversight duty was paid. In case of Electronic Corporation of India Ltd, the department's Appeal was allowed as the refund was filed without challenging the assessment These cases are prior to amendments made in section 17, 18 and 27 of Customs Act. 1962 with different factual backgrounds. Accordingly the case laws are clearly distinguishable in view of facts and circumstances of the case. But in the case at hand, the Appellant had not claimed the exemption Notification consciously under the impression that they do not fulfil the condition of exemption notification and started paying the duty under protest only after SRF judgment (supra).
12. What transcribes from above is that as per CBEC Circular No. 17/2011 dated 08.04.2011 and Sections 17, 18 and 27 ibid as amended, in self-assessment cases, the appellant (importer) is required to approach the proper officer of Customs for provisional assessment or re-assessment 2017 and/or ask for the speaking order under Section 17 of Customs Act, 1962 if the self assessment is changed by the proper officer. In both the cases where no self-assessment is done and where self- assessment is done and reassessment is required under Section 17, the importer can opt for provisional assessment of duty by the proper officer of Customs. The difference is that when no self-assessment is done, the provisional assessment shall get converted into final assessment and when self-assessment is done, the provisional assessment shall get converted into re- assessment. In the instant case, the appellant had filed bill of entry electronically as per regulation 4 of Bill of Entry (Electronic Declaration) Regulations, 2011 read with section 46(1) of Customs Act, 1962 which prescribes that:
14 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017
4. The bill of entry shall be deemed to have been filed and self-
assessment of duty completed when, after entry of the electronic integrated declaration in the Indian Customs Electronic Data Interchange System either through ICEGATE or by way of data entry through the service centre, 6 bill of entry number is generated by the Indian Customs Electronic Data Interchange System for the said declaration.
5. After the completion of assessment, the authorised person shall present the original bill of entry (customs copy) and duty- paid challan and supporting import documents to the proper officer of customs for making an order permitting clearance, after examination of the imported goods if so required.
But the appellant importer filed bills of entries without claiming - exemption from excise duty under Sr. No 263 A of CE Notification 12/2012. The appellant also did not submit any request for provisional assessment or re-assessment before Proper officer of Customs and self-assessed all the bills of entries on merit rate of duty. Accordingly, the assessing group had accepted the self-assessment done by the importer without looking into the conditions of exemption notification as no exemption had been claimed by the importer. But after assessment they had requested for speaking order and paid duty under protest which arises only when the Customs would had made changes in the self-assessed bill of entries or denied the exemption notification claimed by the appellant.
13. Exemption of CVD envisaged under GO! Notification No. 12/2012 CE dated 17.03.2012(as amended) is a conditional benefit. Therefore, it was incumbent upon the importer to satisfy the conditions and demonstrate the same before the assessing/appraising group that exemption claimed if any are properly made out for claiming CVD concession. However, in the instant case, importer has not claimed the benefit of concessional excise duty when the Bills of Entry were presented in the EDI system as per Bill of Entry (Electronic Declaration) Regulations, 2011. Accordingly, the self-assessment in the 15 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 instant case has to be treated as final assessment notwithstanding with the formal letter of duty payment protest.
14. I find that in case of Mafatlal Industries Ltd. vs. Union of India 1997 (89) ELT 247 (SC), the Hon'ble Apex Court held that:
It is not open to any person to make a refund (iv) the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another persona NOV 2017ase has led him to discover the mistake of line under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment of levy has become final in his case, he cannot seek to reopen it nor can he claim refund without re-opening such assessment/order on the ground of a decision in another person's case: Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund.
15. I also find worth to mention that to defuse the revenue implications of SRF judgement (supra) and rule out ambiguity in the language of condition 16 of Excise Exemption Notification 12/2012-CE dated 17.03.2012 Sr.No. 263A; the Government of India issued CE Notification 36/2015 making necessary changes in condition 16 which is sufficient to indicate the legislative intention granting exemption to mobile phones from excise duty which are manufactured locally only and not to the imported mobile phones.
16. I also find that in view of judgment delivered in case of Surya Laxmi Cotton Mills Ltd. vs. CCE, Nagpur 2015 (327) E.LT. 718 (Tri-Mumbai) and amendments made in the section 27 of Customs Act, 1962 with effect from 08.04.2011, the appellant 16 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 could have claimed refund of excess duty paid / borne by him. It goes without saying that all such refund claims are subject to section 28C and 28D of the Customs Act, 1962 which prescribes that:
Chapter VA Indicating amount of duty in the price of goods, etc., for purpose of refund.
Price of goods to indicate the amount of duty paid thereon. SECTION 28C. -
Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold.
SECTION 28D. Presumption that incidence of duty has been passed on to the buyer. Every person who has paid the duty on any goods under this Act shall unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods.]
17. In the instant case, the appellant has stated that they paid the CVD @ 12.5% under protest and had requested for speaking order after the judgement in the case of SRF Ltd., Vs. Commissioner of Customs (supra) delivered on 26.03.2015. Therefore, find that till such date of passing of the order in SRF case, the appellant was neither convinced nor ever claimed applicability of reduced rate of excise duty on the mobile phones. Consequently, the presumption is that the imported goods have been sold to customers under merit rate of excise duty. To negate this presumption, it is incumbent upon the appellant to demonstrate that:-
a. Before SRF Judgment dated 26.03.2015 different models of imported mobile phones which had suffered merit rate of excise 17 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 duty at the time of import have been sold at a OV 2017 price which was arrived at after addition of merit rate of excise duty.
b. After SRF Judgment dated 26.03.2015 becoming aware of the applicability of reduced excise duty on the mobile phones, they have actually charged lesser amount from their customers for the same models though they have paid merit rate of excise Duty to the Department.
18. Therefore it has to be established with the help of sale invoices reflecting details of excise duty actually paid / passed on to customers in terms of section 28C 28D of Customs Act, 1962. It has to be demonstrated with evidence of sales invoices of different models (before & after SRF judgment) that the merit rate of excise duty paid in the bill of entry has been absorbed by the importer himself and not added in the sale value of imported mobile phones.
19. I also find that in Dr. K. Nedunchethian v. The Deputy Commissioner of Income Tax Central Circle. Salem reported in (2005) 2 MLJ 243, the Hon'ble Madras High while considering a matter arising under the Income Tax Act in which the Court framed a question as to whether in Tax matters when alternate remedy is provided in the Act itself should there be short circuiting of the statutory remedy. This issue was considered after elaborately referring to several decisions and it was held that it is well settled by the series of decisions of the Hon'ble Supreme Court that particularly in tax matters, there should be no short circuiting of the statutory remedies (Titaghur Paper Mills Company Ltd v. State of Orissa reported in AIR 1983 SC 603 & Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited reported in AIR 1985 SC 330-1985 (19) ELT 22 (S.C.)).
20. In several other decisions referred therein, it was pointed out that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy. The Hon'ble Supreme Court in the case of Titaghur Paper Mills Company Ltd. v. State of Orissa reported in AIR 1983 SC 603, 18 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 where the appellant therein had pleaded that there was violation of natural justice and the impugned order was without jurisdiction, yet the Supreme Court held that the petitioner should avail his alternate remedy of appeal."
6.3 In the case of ITC Ltd. [2019 (368) ELT 216 (SC), Hon'ble Supreme Court has observed as follows:-
"21. The first question for consideration is whether the assessment includes self-assessment also. Prior to the amendment by the Finance Act, 2011 the assessment had been defined in Section 2(2) thus :
"2(2) "assessment" includes provisional assessment, re- assessment and any order of assessment in which the duty assessed is nil;"
22. After the amendment of Section 2(2) made by the Finance Act, 2011 the definition of 'assessment' reads thus :
"2(2) "assessment" includes provisional assessment, self- assessment, re-assessment and any assessment in which the duty assessed is nil;"
23. It is apparent from the amended definition that self- assessment, provisional assessment, re-assessment and any assessment in which the duty assessed is nil, is an assessment. Assessment includes self-assessment, when the provision of self- assessment has been incorporated in Section 17(1), and corresponding change has been made in the definition of assessment in Section 2(2). Earlier the word self-assessment was not included in the definition of assessment.
24. The assessment of duty was provided in Section 17 of the unamended Act prior to 2011. Pre-amended Section 17 of the Customs Act is extracted hereunder :
"17. Assessment of duty. - (1) After an importer has entered any imported goods under section 46 or an exporter has entered any export goods under Section 50 the imported goods or the export goods, as the case may be, or such part thereof as 19 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 may be necessary may, without undue delay, be examined and tested by the proper officer.
(2) After such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in Section 85, be assessed.
(3) For the purpose of assessing duty under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker's note, policy of insurance, catalogue or other document whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which is in his power to produce or furnish, and thereupon the importer, exporter or such other person shall produce such document and furnish such information.
(4) Notwithstanding anything contained in this section, imported goods or export goods may, prior to the examination or testing thereof, be permitted by the proper officer to be assessed to duty on the basis of the statements made in the entry relating thereto and the documents produced and the information furnished under sub-section (3); but if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other action which may be taken under this Act, be re-
assessed to duty.
(5) Where any assessment done under sub-section (2) is contrary to the claim of the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification therefore under this Act, and in cases other than those where the importer or the exporter, as the case may be, confirms his acceptance of the said assessment in writing, the proper officer shall pass a speaking order within fifteen days from the date of assessment of the bill of entry or the shipping bill, as the case may be."
20 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017
25. Section 17 as amended by Finance Act, 2011 is extracted hereunder :
"17. Assessment of duty. - (1) An importer entering any imported goods under Section 46, or an exporter entering any export goods under Section 50, shall save as otherwise provided in Section 85, self-assess the duty, if any, leviable on such goods.
(2) The proper officer may verify the self-assessment of such goods and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary.
[(3) For verification of self-assessment under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information.] (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.
(5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification issued therefor under this Act and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be.
(6) Where re-assessment has not been done or a speaking order has not been passed on re-assessment, the proper officer may audit the assessment of duty of the imported goods or 21 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 export goods at his office or at the premises of the importer or exporter, as may be expedient, in such manner as may be prescribed.
Explanation. - For the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under Section 46 or an exporter has entered any export goods under Section 50 before the date on which the Finance Bill, 2011 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of Section 17 as it stood immediately before the date on which such assent is received.]"
(emphasis supplied)
26. Section 27 deals with a claim for refund of duty. Provision of Section 27 which prevailed before amendment by Finance Act, 2011 is extracted hereunder :
"27. (1) Any person claiming refund of any duty. --
(i) paid by him in pursuance of an order of assessment; or
(ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs -
(a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year;
(b) in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty, in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 28C) as the applicant may furnish to establish that the amount of duty and interest, if any, paid on such duty in relation to which such refund is claimed was
22 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person :
Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section and the same shall be dealt with in accordance with the provisions of sub-section (2) :
Provided further that the limitation of one year or six months, as the case may be, shall not apply where any duty and interest, if any, paid on such duty has been paid under protest :
Provided also that in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of Section 25, the limitation of one year or six months, as the case may be, shall be computed from the date of issue of such order.
[Provided also that where the duty becomes refundable as a consequence of judgment, decree, order or direction of the appellate authority. Appellate Tribunal or any court, the limitation of one year or six months, as the case may be, shall be computed from the date of such judgment, decree, order or direction.
Explanation I. - For the purposes of this sub-section, "the date of payment of duty and interest, if any, paid on such duty", in relation to a person, other than the importer, shall be construed as "the date of purchase of goods" by such person.
Explanation II. - Where any duty is paid provisionally under Section 18, the limitation of one year or six months, as the case may be, shall be computed from the date of adjustment of duty after the final assessment thereof.
(emphasis supplied)''
27. The provision of Section 27 of the Customs Act as amended by Finance Act, 2011 is extracted hereunder :
23 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 "27. Claim for refund of duty. -- (1) Any person claiming refund of any duty or interest, --
(a) paid by him; or
(b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest :
Provided that where an application for refund has been made before the date on which the Finance Bill, 2011 receives the assent of the President, such application shall be deemed to have been made under sub-section (1), as it stood before the date on which the Finance Bill, 2011 receives the assent of the President and the same shall be dealt with in accordance with the provisions of sub-section (2) :
Provided further that the limitation of one year shall not apply where any duty or interest has been paid under protest.
Provided also that where the amount of refund claimed is less than rupees one hundred, the same shall not be refunded.
Explanation. -- For the purposes of this sub-section, "the date of payment of duty or interest" in relation to a person, other than the importer, shall be construed as "the date of purchase of goods" by such person.
(1A) The application under sub-section (1) shall be accompanied by such documentary or other evidence (including the documents referred to in Section 28C) as the applicant may furnish to establish that the amount of duty or interest, in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty or interest, has not been passed on by him to any other person.
(1B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely :-
24 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017
(a) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of Section 25, the limitation of one year shall be computed from the date of issue of such order;
(b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction;
(c) where any duty is paid provisionally under section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in case of re-assessment, from the date of such re-assessment.] (2) If, on receipt of any such application, the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied that the whole or any part of the duty and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :
Provided that the amount of duty and interest, if any, paid on such duty as determined by the Assistant Commissioner of Customs or Deputy Commissioner of Customs under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to -
(a) the duty and interest, if any, paid on such duty paid by the importer [or the exporter, as the case may be], if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person :
(b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use;
(c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person;
25 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017
(d) the export duty as specified in Section 26;
(e) drawback of duty payable under Sections 74 and 75;
(f) the duty and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify :
(g) the duty paid in excess by the importer before an order permitting clearance of goods for home consumption is made where -
(i) such excess payment of duty is evident from the bill of entry in the case of self-assessed bill of entry; or
(ii) the duty actually payable is reflected in the reassessed bill of entry in the case of reassessment.
Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person.
(3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal, the National Tax Tribunal or any Court or in any other provision of this Act or the regulations made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (12).
(4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall, seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification 26 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder.
(5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub- section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette."
(emphasis supplied)
28. Section 28 deals with the recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. Section 28(1) is extracted hereunder :
"28. Recovery of duties not levied or not paid or short- levied or short-paid or erroneously refunded. -- (1) Where any duty has not been levied or not paid or has been short- levied or short-paid or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any wilful misstatement or suppression of facts, -
(a) the proper officer shall, within two years from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice;
Provided that before issuing notice, the proper officer shall hold pre-notice consultation with the person chargeable with duty or interest in such manner as may be prescribed;
(b) the person chargeable with the duty or interest, may pay before service of notice under clause (a) on the basis of, -
(i) his own ascertainment of such duty;
or 27 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017
(ii) the duty ascertained by the proper officer, the amount of duty along with the interest payable thereon under Section 28AA or the amount of interest which has not been so paid or part-paid :
Provided that the proper officer shall not serve such show cause notice, where the amount involved is less than rupees one hundred."
(emphasis supplied)
29. The first question for consideration is whether in the case of self-assessment without passing a speaking order, it can be termed to be an order of self-assessment. It was urged on behalf of the assesses that there is no application of mind and merely an endorsement is made by the authorities concerned on the bill of entry which cannot be said to be an order much less a speaking order.
33. Under the provisions of Section 17 as amended by Finance Act of 2011, Section 17(1) has provided to self-assess the duty if any leviable on such goods by importer or exporter as the case may be. Self-assessment is an assessment as per the amended definition of Section 2(2). It is further provided that proper officer may verify the self-assessment of such goods, and for this purpose, examine or test any imported goods or exported goods or such part thereof as may be necessary. The power to verify self-assessment lies with the proper officer and for that purpose under Section 17(3), he may require the importer, exporter or any other person to produce such document and furnish such information, etc. If the proper officer on verification has found on examination or testing of the goods or as part thereof 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 the Act, may proceed to re-
assess the duty leviable on such goods. Section 17(5) of the Act as amended provides that where re-assessment done under sub- section 17(4) is contrary to the assessment done by the importer or exporter regarding the matters specified therein, the proper 28 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 officer has to pass a speaking order on the re-assessment, within 15 days from the date of reassessment of the bill of entry or the shipping bill, as the case may be. The explanation to amended Section 17 has clarified that import or export before the amendment by Finance Act, 2011 shall be governed by unamended provisions of Section 17.
34. Section 18 deals with the provisional assessment of duty where the importer or exporter is unable to make self- assessment or the proper officer deem it necessary to subject any imported or export goods to any chemical or other tests; or where further inquiry is deemed necessary by the proper officer.
35. Section 27 of the Act prior to amendment by Finance Act, 2011 provided for refund procedure. Any person could claim a refund of duty and interest if any paid on such duty. Refund of duty and interest if any paid pursuant to the order of assessment or borne by him, may make an application for refund of such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs within one year in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital. In any other case before the expiry of six months from the date of payment of duty and interest. He has to further satisfy that he has not passed on such liability to any other person. The limitation of one year or six months shall not apply where any duty and interest has been paid under protest. It is made clear by the second proviso to Section 27 that in case of refund becomes necessary as a consequence of judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year or six months shall commence from the date of such judgment, decree, order or direction.
36. Section 27 of the Customs Act as amended by Finance Act, 2011 provides that any person claiming refund of any duty or interest paid or borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant or Deputy Commissioner of Customs before the expiry of one year from the date of payment of such duty or interest. If 29 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 an application for refund has been made before Finance Bill received the assent of the President, it is deemed to be filed under the provision of Section 27(1) as existed and to be dealt with under Section 27(2). The period of limitation of one year provided by the provisions of Section 27 has to be computed in the case of goods which are exempt from payment of duty by a special order issued under Section 25(2) from the date of issue of such an order as provided in Section 27(1B)(a). Where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any Court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction. It is provided in Section 27(1B)(c) that where any duty is paid provisionally under Section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in the case of re-assessment, from the date of such re-assessment. The second proviso to Section 27 makes it clear that limitation of 1 year shall not apply where any duty or interest has been paid under protest.
37. Under Section 27(2)(a) it is incumbent upon the applicant to satisfy that the amount of duty or interest of which refund has been claimed, had not been passed by him to any other person, the provision aims at preventing unjust enrichment.
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).
39. In Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) = (2000) 6 SCC 650, the question which came up for consideration before this Court was non-challenge of an appealable order where the adjudicating 30 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 authority had passed an order which is appealable under the statute, and the party aggrieved did not choose to file an appeal. This Court held that it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. The provisions of the Central Excise Act, 1944 came up for consideration. The Court has observed :
"10. Coming to the question that is raised, there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing its order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position, in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot be countenanced. The view was taken by us also gains support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that whereas a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, if an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for the refund which, if we may term it so, is in the nature of execution of a decree/order. In the case at hand, it was specifically mentioned in the order of the Assistant Collector that the assessee may file an appeal against the order before the Collector (Appeals) if so advised."
31 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 (emphasis supplied)
40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) = (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of assessment stands, the duty would be payable as per that order of assessment. This Court has observed thus :
"6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) case (2000) 6 SCC 650. Once an order of assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal, that order stands. So long as the order of assessment stands the duty would be payable as per that order of assessment. A refund claim is not an appeal proceeding. The officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The officer considering the refund claim cannot also review an assessment order.
7. We also see no substance in the contention that provision for a period of limitation indicates that a refund claim could be filed without filing an appeal. Even under Section 11 under the Excise Act, the claim for refund had to be filed within a period of six months. It was still held, in Flock (India)'s case (supra), that in the absence of an appeal having been filed no refund claim could be made.
8. The words "in pursuance of an order of assessment" only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an order of assessment to claim the refund. These words do not lead to the conclusion that without the order of assessment having been modified in appeal or reviewed a claim for refund can be maintained."
(emphasis supplied) 32 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017
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 provisions of 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 33 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 '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, 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 Cycles Ltd. v. Union 34 C/ 87908,87910,87911,87913-87918,87920, 87921,87923-87926/2017 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."
7.1 In view of the above referred order of Hon'ble Supreme Court, the order passed by the Commissioner (Appeals) disposing of the appeals cannot be upheld and the order needs to be passed on the merits of the case.
7.2 Appeals are accordingly allowed and the matter remanded back to the Commissioner (Appeals) for decision on merits.
7.3 Needless to say that the matter in the remand proceedings be decided within three months of receipt of this order.
(Order pronounced in the open court) (Sanjiv Srivastava) Member (Technical) (Dr. Suvendu Kumar Pati) Member (Judicial) tvu