Custom, Excise & Service Tax Tribunal
Goa Carbon Ltd vs Bhubaneshwar-I on 13 February, 2025
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No.76444 of 2017
[Virtual Mode of Hearing]
(Arising out of Order-in-Appeal No.40/CUS/CCP/2017 dated 27.04.2017 passed by
Commissioner(Appeals), Central Excise, Customs & Service Tax, Bhubaneswar.)
M/s. Goa Carbon Limited
(Vill-Udayabata, P.O.-Paradeepgarh, Paradeep, Dist.-Jagatsinnghpur, Odisha-
754142.)
...Appellant
VERSUS
Commissioner of Customs (Prev.), Bhubaneswar
.....Respondent
(C.R. Building, Rajaswa Vihar, Bhubaneswar, Odisha.)
APPEARANCE
Shri M.S. Nagaraja, Advocate for the Appellant (s)
Shri Faiz Ahmed, Authorized Representative for the Revenue
CORAM: HON'BLE SHRI R. MURALIDHAR, MEMBER(JUDICIAL)
HON'BLE SHRI RAJEEV TANDON, MEMBER(TECHNICAL)
FINAL ORDER NO. 75372/2025
DATE OF HEARING : 09.01.2025
DATE OF DECISION : 13.02.2025
Per : RAJEEV TANDON :
The present appeal is filed by M/s. Goa Carbon Ltd. assailing the
Order-in-Appeal No.40/CUS/CCP/2017 dated 27.04.2017, whereby the
Ld.Commissioner(Appeals) has disallowed the refund claims filed by the
appellant as inadmissible both on the ground of time bar as well as on
merits of the case. The Ld.Commissioner(Appeals) thereby disposed of
the representations filed by the appellant in the matter and maintained
the contentions, conveyed vide communication dated 30.03.2016,
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herein as Order-in-Original dated 30.03.2016. In essence the principal
reason for arriving at such a finding by the Ld.Commissioner(Appeals)
rests on the ruling of the hon'ble apex court in the case of Priya Blue
Industries Ltd. v. Commissioner [2004 (170) ELT A-308 (SC)],
and accordingly the Ld.Commissioner(Appeals) has termed the order of
the Ld.Deputy Commissioner, Customs Division, Paradeep as a
reasoned one that deserves to be accepted.
2. M/s.Goa Carbon Ltd. are manufacturers and exporters of Calcined
Petroleum Coke (CPC) classifiable under CTH 2713 1200. It is their
contention that the department subjected them to a levy of Cess @ 10
per MT, Education Cess @ 2% and SHE Cess @ 1% on the CPC
exported during the period April 2005 to January 2012. Shri S.
Nagaraja, Ld.Advocate for the appellant has impressed that the
impugned Cess was leviable under the Coal Mine (Conservation and
Development) Act, 1974 read with Notification No.SO/727/(E) dated
25.06.2003 issued by the Ministry of Coal, Govt. of India and was not
leviable on CPC which was exported, as the same was a manufactured
petroleum product and not excavated from the coal mines. He contends
that the said Cess was incorrectly levied by the assessing authorities
and accordingly the appellant filed three refund applications covering
exports made for the period April 2005 to August 2011, October 2011
and January 2012, collectively for an amount of Rs.20,44,088/-. The
ld.advocate further submits that the said refund applications were not
processed by the department despite umpteen requests and
representations made. Subsequently, the Deputy Commissioner of
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Customs, Paradeep Division vide letter No.VIII-CUS-
33(02)/PDP/09/Part-I dated 30.03.2016 responded to as under:-
"In view of the above, your refund applications/claims, even if
presumed to have been not disposed of in the manner prescribed u/s
27 of the Customs Act, 1962, the same appear to be not only time
barred but also inadmissible in the eyes of the law. It disposes your
representations/claims in the matter."
3. The primary reasons for arriving at such a finding by the said
authority is contained in the said letter itself and recorded as under:-
"In this connection, it is to mention that, though the manner of
disposal of your above said 3 applications is not readily ascertainable
form the available records but from the perusal of the relevant Shipping
Bills vis-à-vis your applications (copies submitted on request on
23.03.2016), it is revealed that :-
(i) the proper officer has simply assessed your S/B(s)
without imposing cess on his own - rather Shipping
Bills had been filed with calculation of cess there on;
(ii) the Shipping Bills were not assessed provisionally,
rather assessed finally (directly) excepting few which
seems to have been finally assessed subsequently;
(iii) the refund claims have been filed beyond the time limit
prescribed under Section 27 of the Customs Act, 1962;
(iv) the duty (cess) was neither paid under protest nor the
assessment of the Shipping Bills made under Section
17 (being appealable orders), were appealed against
before the appellate authority within the time limit as
per the provisions of Customs Law. Provisions exist
under the Customs Law for appeals against such orders
by the department, including assessments.
(v) As per the ratio of the judgement given by the Hon'ble
Supreme Court in the case of Priya Blue Industries Ltd.
vs. Commissioner reported under 2004 (170) ELT A
308 (S.C.) wherein it has been held that, if the
assessment is finalized and was not challenged
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by filing appeal, the refund claim made under
Section 27 would not be maintainable;
4. It is seen from this letter that the same was issued pursuant to
certain discussions held with the representative of the appellant Shri
R.Ravi, G.M. (Operations) and Shri N.R. Barik. The fact being that CPC
manufactured and exported by the appellant, not being cooking or non-
cooking coal did not attract duty of excise leviable on cooking and non-
cooking coal @ Rs.10.00 per MT vide Notification No.SO-727/(E) dated
25.06.2003 issued by the Ministry of Coal, Govt. of India under the
Coal Mine (Conservation and Development) Act, 1974. It is against this
communication dated 30.03.2016 that the appellant approached the
Commissioner(Appeals) who vide order under challenge dismissed the
appeal filed, upholding the order/communication dated 30.03.2016 of
the Deputy Commissioner, Customs Division, Paradeep.
5. The appellant has vehemently argued before us that they seek
recourse to provisions of Section 149 of the Customs Act seeking
amendment of the documents while as an alternative plea they also
invite our attention to the provisions of Section 154 of the Customs Act.
To appreciate the contentions of the appellant, it is imperative that the
said two Sections are recorded in this order:-
SECTION 149. Amendment of documents. -- Save as otherwise
provided in sections 30 and 41, the proper officer may, in his
discretion, authorise any document, after it has been presented in the
custom house to be amended [in such form and manner, within such
time, subject to such restrictions and conditions, as may be
prescribed] :
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Provided that no amendment of a bill of entry or a shipping bill or bill
of export shall be so authorised to be amended after the imported
goods have been cleared for home consumption or deposited in a
warehouse, or the export goods have been exported, except on the
basis of documentary evidence which was in existence at the time the
goods were cleared, deposited or exported, as the case may be:
[Provided further that such authorisation or amendment may also be
done electronically through the customs automated system on the
basis of risk evaluation through appropriate selection criteria:
Provided also that such amendments, as may be specified by the
Board, may be done by the importer or exporter on the common
portal.]
SECTION 154. Correction of clerical errors, etc. -- Clerical or
arithmetical mistakes in any decision or order passed by the Central
Government, the Board or any officer of customs under this Act, or
errors arising therein from any accidental slip or omission may, at any
time, be corrected by the Central Government, the Board or such
officer of customs or the successor in office of such officer, as the case
may be.
6. To recap and appreciate the issue raised now as well as before
the lower authorities it need be stated that the appellant filed various
Shipping Bills for export of CPC, which were assessed as filed by the
appellant, incorporating the calculation relating to Cess/Cesses and
therefore levying the same at the time of export. It is a recorded fact
that the Shipping Bills were assessed finally and that recourse to
provisions of Section 18 of the Customs Act was not resorted to. Thus
for claiming refund of excess duty paid, the assessee-appellant filed
refund claims under Section 27 of the Customs Act. The impugned
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refund claims were filed well beyond the prescribed timelines under
Section 27 of the act ibid. It also flows from records that the said Cess
was neither paid under protest nor the assessment of the Shipping Bills
made under Section 17, were appealed against as warranted in law.
The lower authorities have adverted to the ruling of the hon'ble apex
court in the case of Priya Blue Industries Ltd. vs. Commissioner
[2004 (170) ELT A 308 (S.C.)] to state that the assessment finalized
was not challenged by filing an appeal and therefore the refund claims
were not maintainable. The ld.advocate fairly concedes that the
assessment of the Shipping Bills was however not challenged by way of
appeal.
7. It is a fact that CPC, not being coal, raised in a mine nor
manufactured from cooking coal and having been extracted from crude
oil being a petroleum product is not leviable to Cess in terms of Section
6(1) of the Coal Mines (Conservation and Development) Act, 1974 read
with Notification No.SO/727/(E) dated 25.06.2003. This contention has
admittedly not been disputed by the lower authorities. We therefore
find that the claim of the appellant for refund of duty has been rejected
not on merits but on legal considerations and technicalities and
provisions of law. It is now in this context that the scope and
applicability of the provisions of Section 149 or 154 of the Customs
(supra) resorted to by the appellant in appeal proceedings have to be
examined. However, before we proceed with the said analysis, it would
be appropriate to incorporate the specific contentions of the appellants
verbatim. Thus :
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―(i) the Calcined Petroleum Coke manufactured in their factory and
classifiable under Central Excise Tariff Heading 27131200 of the CETA,
1985 has been exported by them; Section 6(1) of the Coal Mine
(Conservator and Development) Act, 1974 read with ministry of coal
Notification S.O. 727 (E) dated 25.05.2003 makes provision for levy of
cess as duty of excise on Coking Coal and Non-coking Coal raised and
dispatched; coke manufactured and dispatched from collieries; the
Calcined Petroleum Coke is neither coal raised in a mine nor coke
manufactured from coking coal. The petroleum coke is extracted from
crude oil and is a petroleum product. The petroleum coke is calcined to
obtain Calcined Petroleum Coke. There is no levy of duty or cess on
petroleum coke under the provision of Coal Mine (Conservator and
Development) Act, 1974 read with the Notification dated 25.06.2003;
(ii) the levy of cess @ Rs.10.00 PMT, Ed. Cess @ 2% and SHE Cess
@ 1% on export of Calcined Petroleum Coke by the department is
without authority of law and maintainable;
(iii) the Adjudicating Authority has not disputed the appellant's claim
on merits that cess on export of Calcined Petroleum Coke is not
payable. However, no finding is given justifying the collection of cess in
accordance with law;
(iv) the contention of the Adjudicating Authority that the appellant
had provided calculation of cess on the export of Calcined Petroleum
Coke in the shipping bills and the proper officer has simply assessed the
same and the cess was not paid under protest is incorrect as
assessment is statutory duty of the proper officer which responsibility
the authority cannot shirk.
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(v) the observation of the Adjudicating Authority that the shipping
bill assessed under Section 17 of the Central Excise Act, 1962 have not
been appealed against within time limit as per Hon'ble Supreme Court's
judgment in the case of Priya Blue Industries Ltd. vs. Commissioiner
2004(170)ELT A 308(SC) and the refund claims have not filed within
time limit under Section 27 ibid appear to incorrect as no decision has
been taken on the refund claims pending for the last five years;
(vi) that their claim is admissible in light of the provision of Section
149 and 154 of Central Excise Act, 1962 which has not been properly
appreciated by the Adjudicating Authority.
(vii) the ratio of the following case laws have been taken support to
substantiate their above stand.
(a) UOI vs. Hero Cycles Ltd. - 2010 (252) ELT A 103 (SC)
(b) Commissioner of Customs, Guntur vs. Sameera Trading Company
[2011 (264) ELT 578 (Tri.-Bang.)]
(c) Oswal Agloimpex Pvt.Ltd.vs. Commissioner of Customs, Kandla
[2012 (283) ELT 300 (Tri.-Ahmd.)]
(d) Tata Iron & Steel Co. Ltd. vs. Commissioner of Customs (Port), Kol.
[2006 (202) ELT 719 (Tri.-Kolkata)]
(e) CCE vs. Muneer Enterprises vide Final Order Nos.1071 to 1075/2010
Dt.15.07.2010
(f) CC(Customs Promotion), Mumbai v. SAIL
[2016-TIOL-735-CESTAT-MUM]
(viii) that interest is payable in the refund amount as per Hon'ble
Supreme Court's judgement in the case of Ranbaxy Laboratories Ltd.
vs. UOI - 2011 (273) ELT 3 (SC);
(ix) that there is no case of unjust enrichment in the subject dispute
as Hon'ble Andhra Pradesh High Court's decision in the case of Asia
Pacific Commodities Ltd. vs. ACC, Kakinada - 2012 (280) ELT 481 (AP).
8. While it is a fact that the appellant had filed various shipping bills
as aforesaid during the material period, themselves incorporating the
levy of Cess @ 10/- per MT, Education Cess @ 2% and SHE Cess @ 1%
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on the said goods and that the Shipping Bills were assessed finally
under Section 17 of the Customs Act as filed, accepting the appellant's
contentions, and that no formal protest of any type had been raised at
the time of assessment so done; it however can be noted from records
that a sense of protest as to levy of such imposts on CPC does arise
later in the day, as is clear from the communications subsequently
addressed to the department by the appellant. Factually speaking there
is no formal protest in accordance with the mechanism prescribed and
laid out in the law, disputing the assessments undertaken. There are
also no formal duty paying challans duly endorsed as ―under protest‖
indicating of a cause of any such protest on record. In this view of the
matter even if the levy has been inappropriately assessed, it cannot be
denied that the assessments were final. The option therefore before the
appellant was to follow the law as laid down by the apex court in the
case of Priya Blue Industries Ltd. [2004 (172) E.L.T. 145 (SC)],
wherein wherein the hon'ble apex court had held that no refund would
be admissible without filing an appeal before the appropriate forum for
nullifying the assessment undertaken. In this regard relevant extract of
the Supreme Court's order is as under :-
"6. We are unable to accept this submission. Just such a contention
has been negatived by this Court in Flock (India)'s case (supra). 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
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refund claim cannot also review an assessment order.
7. We also see no substance in the contention that provisions for a
period of limitation indicates that a refund claim could be filed without
filing an Appeal. Even under Rule 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 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."
9. The said order in detail was passed in review proceedings of the
hon'ble apex court's own order in the said case of Priya Blue
Industries Ltd. [2004 (170) E.L.T. A-308 (S.C.)], wherein appeal
filed by the assessee against Tribunal's order was dismissed by the top
court holding that any refund claim contrary to an assessment order
(that was not challenged) was not maintainable. The apex court while
setting aside the orders of this Tribunal, in the case of Commissioner
of Customs, Central Excise & Service Tax (Appeals-II),
Hyderabad v. Standard Consultants Ltd. [2022 (381) E.L.T. 582
(SC)], relying on its decision in the case of ITC Ltd. [2019 (368)
E.L.T. 216 (SC)], categorically held that any refund without
challenging assessment order is not permissible.
10. Given the aforesaid prevailing legal perspective, the appellant
herein seeks to take recourse to the provisions of Section 149 and
Section 154 of the Customs Act, for the remedy sought. When the law
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as laid down by the apex court is so specific, it prima facie belies logic
as to how recourse to Section 149 and Section 154 can be resorted to,
arrive at the desired outcome, as contemplated by the appellant to flow
from the proposed action in terms of Section 149 or Section 154 of the
Customs Act. It prima facie also appears that if such a recourse is
approved of and resorted to, to arrive at the outcome enabling refund
of cesses paid, then Section 27 of the Act would be rendered
redundant, nugatory and otiose. This clearly cannot be the intention in
law and certainly is not so. The hon'ble Allahabad High Court in the
case of Kamrup Industrial Gases vs. CEGAT, New Delhi [2004
(172) E.L.T. 454 (All.)], had stated in so many words:
"15. The provisions of one section of the statute cannot be used to
defeat those of another unless it is impossible to effect reconciliation
between them. Thus a construction that reduces one of the provisions
to a "useless lumber" or "dead letter" is not a harmonised
construction. To harmonise is not to destroy.
[Emphasis supplied]
11. It may also be noted that filing of a refund claim in itself by no
stretch can be considered as having taken recourse to an appeal
proceeding. Under that circumstance the course of action as canvassed
by the Ld.Advocate would also impinge upon the independent standing
of the appellate provisions laid out in the Customs Act under Chapter
XV thereof. Thus any such proposition as would tend to defeat the
objective of the stipulations of law and render the provision(s) futile
and worthless, is obviously not the objective of the law. The grounds
for such a reasoning therefore cannot be accepted.
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12. As evidently held by the apex court, it is imperative that a person
aggrieved by any assessment order is required to file an appeal against
the said assessment undertaken, in respect of the shipping bills for
which refund is sought, to have the said assessment order nullified. We
find from records that the Ld.Advocate has however, even before the
lower authority taken the plea of recourse to the provisions of Section
149 and Section 154 of the Act ibid. The appellant's reliance to section
149 essentially flows in view of their representations made before the
concerned authorities.
13. The law under Section 149 of the Act provides for amendment of
documents. It categorically refers therein to section 30 and 41 of the
Customs Act thereby implying reference to Bill of Entry and Shipping
Bill i.e. import and export documents respectively. It may at this
juncture be pointed out that even a recourse to such amendment
provisions is not completely open ended and would be subject to
stipulations as prescribed in law.
14. This Tribunal in the case of Commissioenr of Customs, Nhava
Sheva v. Panasonic Battery India Co.Ltd. [2010 (256) E.L.T. 623
(Tri)], in a similar context pleading correction of an assessed Bill of
Entry had the following to state :
"5. As it appears from the records, the assessee had requested for
a reassessment of the Bill of Entry. They submitted that there were
clerical errors in the Bill of Entry which required to be corrected in
terms of Section 154 read with Section 149 of the Customs Act. This
was the request to the assessing authority. As rightly submitted by the
learned SDR, Section 154 is not available for this purpose inasmuch
as, under that provision, the Central Government, the Board or any
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officer of Customs is authorized to correct any clerical or arithmetical
mistake or any error arising from any accidental slip or omission. The
mistake in the present case, if any, was not on the part of the
assessing authority (Assistant Commissioner of Customs) but on the
part of the assessee. The assessing authority accepted the declared
value and assessed the goods to duty of Customs. It was the assessee
who might have made mistakes while presenting Bill of Entry. Section
154 does not authorize correction of such mistakes. If it was the
assessee's case that they made erroneous entries in the Bill of Entry, it
was upto them to seek amendment of the Bill of Entry before the
assessing authority on the basis of document any evidence which was
in existence at the time of clearance of the goods. It appears, no
action was taken by them in this regard under Section 149 of the Act.
A case involving the interplay of Section 149 (which provides for
amendment of Bills of Entry on the basis of documentary evidence in
existence at the time of clearance of goods) and Section 17 (which
provides for reassessment) was considered by this Tribunal in I.P.
Rings Ltd v. Commissioner - 2006 (202) E.L.T. 61 (Tri.-Chennai). The
decision in I.P. Rings Lid's case has been consistently followed by this
Tribunal. It is upto the assessing authority to take appropriate steps in
terms of the Tribunal's decision in I.P. Rings Ltd.'s case, if it is
approached by the assessee with a proper application under Section
149 of the Act. With these observations, the appeal of the Revenue is
allowed."
15. It would also be relevant to state that the words ―amendment‖
and ―assessment‖ signify two different connotations and are indicative
of two separate, independent and different proceedings in law. The
words ‗amendment' and ‗assessment' as spelled out in Black's Law
Dictionary, 7th edition is as under :-
Amendment. 1. A formal revision or addition proposed or
made to a statute, constitution, or other instrument.
Assessment, 1. Determination of the rate or amount of
something, such as a tax or damages <assessment of the
losses covered by insurance>. 2. Imposition of something,
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such as a tax or fine, according to an established rate; the
tax or fine so imposed <assessment of a luxury tax>
As against assessment, the term ―appeal‖ refers to an entirely
different concept in law and is defined as under:
(Black's Law Dictionary, 7th edition)
Appeal, n. A proceeding undertaken to have a decision
reconsidered by bringing it to a higher authority; esp., the
submission of a lower court's or agency's decision to a
higher court for review and possible reversal <the case is
on appeal>. Cf. CERTIORARI.
From a plain reading of the aforesaid it is obviously clear that the
three terms imply altogether different facets and aspects of working.
16. Indeed, however the appellant without seeking a revision to the
assessment made and having got the original assessment set aside,
filed three refund claims vide applications dated 29.08.2011,
18.11.2011 and 13.02.2012 claiming refund of cess @ Rs.18,34,276/-,
Rs.1,04,906/- and Rs.1,04,706/- in respect of relevant shipping bills
and also wrote to the department. A copy of one such letter is scanned
hereinbelow :
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17. The objective of recording one of such communication for ready
reference is to show that the appellant while pointing out the non-levy
of the cess assessed, unequivocally sought refund of the said amount,
allegedly ―wrongly levied‖. There is no whisper of seeking any
amendment of the impugned export documents or terming the said
payment of cess on account of clerical/arithmetical errors. Least of all,
there is no word or indication therein of adherence and seeking
recourse to the provisions of section 128 of the Customs Act, against
the levy so assessed. The law provides for an appeal mechanism which
cannot be substituted, by seeking recourse to the provisions
concerning amendment or correction of the relevant documents. It is
settled law that even if payment is made under mistake of law, as long
as the order was final, no refund benefit in law could accrue till the
same is unsettled and assessed afresh.
18. In so far as provisions regarding Section 154 of the Customs Act
are concerned, it is clear from the stipulations in law that the provisions
only seek to correct clerical or arithmetical mistakes in any decision or
orders passed and such errors, as may arise by way of an accidental
slip or omission. Contrast to this, with the assessment of Shipping Bills
having been undertaken, it cannot be construed that the assessment
therein undertaken, by the department, was a clerical or arithmetical
error. It is an undisputed fact on record that the appellants themselves
had filed the impugned shipping bills in the manner as assessed,
subjecting them to the levy of cess that has been pointed out to not
have been leviable on the impugned goods. However, the export goods
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having been assessed to such duty, the only course available for the
appellant was to challenge the impugned assessment, have the
assessment rectified and thereafter seek consequential benefit as would
arise in law.
19. We also note that the provisions of Section 17, of the Customs
Act as then existed, pertaining to assessment of duty are categoric and
cast upon the proper officer a responsibility for assessment of the
goods to duty as leviable. As it emerges from the facts on record that
the assessments were approved and finalized based on the appellant's
own declaration and no such evidence at the time of assessment was
produced to impute any wrong declaration/assessment. As no
document showing mistakes were filed before the proper officer of
Customs, and the assessment undertaken (right or wrong) not
overturned, we are of the view that the refund applications filed were
appropriately rejected by the Revenue authorities.
20. We also note, from records that the orders of both the lower
authorities are well reasoned and self-speaking, concisely amplifying
the grounds on which basis, provisions of Section 149 and Section 154
of the Customs Act cannot be resorted to and made applicable to the
issue herein. The appellant had themselves filed the shipping bills in the
manner as aforestated incorporating the said cess. It is apparent that
there is no arithmetical or clerical mistake in the assessments so done.
The assessment to cess, is indeed a consequence of conscious action
taken by both the sides. Irrespective of the fact of whether it being the
right or wrong course of action, it cannot be considered as error arising
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from an accidental slip or omission in the decision or order of the
assessing authority, hence the question of invoking the provisions of
Section 154 for correction of clerical/arithmetical error cannot be
applied to in the present matter. Even in the case of Paras Electronics
(P) Ltd. v. UOI [1996 (83) E.L.T. 261 (SC)], while not admitting
the appellant's plea seeking refund though on a different ground and
not related to Section 149 or Section 154 of the Customs Act, the Court
had observed as :
"In the first place, in the proceedings which emanated for levy of duty
the order became final and without having that order set aside by a
competent court there would be no question of grant of refund merely
................................."
This important obiter in the case, is undisputedly the law of the
land and has been held so in a series of cases.
21. In view of aforesaid, it is clear that amendment of an export
document, by way of clerical/arithmetic oversight, cannot potentially be
a substitute to appellate proceedings. The rectification as sought, too,
cannot be wished away as a minor error or omission in the export
processing documents. Assessment of the shipping bill is a quasi legal
aspect of work in furtherance of the provisions of the statute and
certainly would not fall within the ambit of an administrative act as
could be corrected by way of correction of errors, as sought by the
appellant in proceedings before us. Assessment proceedings are a
substantive act and any infirmity having crept therein, can only be
made good by way of a process as built in law i.e. by adopting the
appeal mechanism and that alone would be the way for the resolution
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of the lis. It cannot be disputed that in law the officers were then
empowered to carry out the assessment of the export documents and
obviously such assessment cannot be hypothetical or theoretical or
conceptual but necessarily have to be in accordance with law.
Nonetheless, even if erred the only remedy lies in having the said
assessment repealed by an appeal mechanism by a superior authority
as provided in law.
22. In support of their stance the appellant has sought to derive
support from certain pronouncements of the Apex Court/High
Court/Tribunal. They have amongst others relied upon :
(i) Dimension Data India Pvt.Ld. vs. Commissioner of Customs
[2021 (376) E.L.T. 192 (Bom.)] - as was
maintained by the apex court in 2022 (379) E.L.T. A-39 (SC).
It may be sufficient to state that the factual context of the said
case were entirely in distinction with the present matter - there being
no case of refund claims filed and rejected on grounds of a non-
challenge and reversal of the assessment so undertaken in the case.
After a detailed analysis, the hon'ble Bombay High Court had
categorically noted the point of law and observed as under :
"22. Having noticed and analysed the relevant legal provisions, we
may now turn to the decision of the Supreme Court in ITC Ltd. v.
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.
22.1 From the question itself, it is clear that the issue before the
Supreme Court was not invocation of the power of reassessment under
Section 17(4) or amendment of documents under Section 149 or
21
Customs Appeal No.76444 of 2017
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).
...................
24. In the instant case, petitioner has not sought for any refund on the basis of the self-assessment. It has sought reassessment 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. This distinction though subtle is crucial to distinguish the case of the petitioner from the one which was adjudicated by the Supreme Court and by this Court."
Thus as evident from above, the question of law involved in this case was not what has been pleaded herein. The order passed by the adjudicating authority dated 30.03.2016 that merged with the impugned order had held as :
"In view of the above, your refund applications/claims, even if presumed to have been not disposed of in the manner prescribed under 22 Customs Appeal No.76444 of 2017 section 27 of the Customs Act, 1962, the same appear to be not only time barred, but also inadmissible in the eyes of law..........................."
and party's appeal as noted earlier was dismissed by Commissioner(Appeals) relying on the apex Court's order in the case of Priya Blue Industries Ltd. (referred to in earlier paras). Moreover, the Dimension Data India Pvt.Ltd. was a case of self assessment unlike the present matter.
(ii) Hero Cycles Ltd. vs. UOI [2009 (240) E.L.T. 490 (Bom.)] as maintained by the apex court in 2010 (252) E.LT. A103 (SC)].
In contradistinction to the present matter, this was a case of claim of exemption, not claimed initially at the time of import and wherein the hon'ble courts exercised their ―extra-ordinary jurisdiction‖ to grant relief to the party. Unfortunately, this Tribunal being a creation of the statute wields no ―extraordinary jurisdiction‖, as vested in Constitutional Courts. Indeed the hon'ble High Court in the Hero Cycles Ltd. case, observed :
"In so far as the claim for refund is concerned, that would only arise after the order is amended. The relief of refund claimed is not maintainable before the order of assessment is amended or modified as held by the Supreme Court in Priya Blue Industries ................."
(iii) Steel Authority of India Ltd. vs. Commr. of Cus., Chennai [2016 (343) E.L.T. 602 (T)] In the said case, refund claims filed by the party were returned to them having been filed prematurely and directed to refile the same post re-assessment of the bills of entry.
(iv) IOCL vs. Commissioner of C.Ex. & Cus., Vadodara-II [2015 (321) E.L.T. 292 (Tri-Ahmd.)] 23 Customs Appeal No.76444 of 2017 In the said case the question concerned was with reference to disposing off the assessee's request for action under section 154 of Customs Act after four years by stating that the assessee should have filed appeal against the assessment.
23. In view of the discussions aforesaid the reliance on case law support as invited by the appellant is clearly out of context. None of the cited cases advocate adoption of the mechanism of section 149 or section 154 of the Customs Act, where the only course of action and the remedy in law lies in the mechanism of appeal as contained in Chapter XV of the Customs Act, 1962.
24. In view of our findings above, we find no substance in the appeal filed and the same is therefore liable to be dismissed. We note that the Commissioner(Appeals) has correctly applied the law as laid down by the apex court in the case of Priya Blue Industries in the matter. The order of the lower authority is therefore maintained and the appeal filed is dismissed.
(Order pronounced in the open court on 13.02.2025.) Sd/ (R. MURALIDHAR) MEMBER (JUDICIAL) Sd/ (RAJEEV TANDON) MEMBER (TECHNICAL) sm