Custom, Excise & Service Tax Tribunal
M/S. Steel Authority Of India Ltd vs Commissioner Of Customs, Chennai on 29 May, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/392/2010
(Arising out of Order-in-Appeal C. Cus. No. 577/2010 dated 28.9.2010 passed by the Commissioner of Customs (Appeals), Chennai)
M/s. Steel Authority of India Ltd. Appellant
Vs.
Commissioner of Customs, Chennai Respondent
Appearance Shri Hari Radhakrishnan, Advocate for the Appellant Mrs. Cecilia Parthasarathy, AC (AR) for the Respondent CORAM Honble Shri R. Periasami, Technical Member Honble Shri P. K. Choudhary, Judicial Member Date of Hearing / Decision: 29.05.2015 Final Order No. 40760 / 2015 Per P.K. Choudhary This is an appeal filed by Steel Authority of India Ltd. (hereinafter referred to as the Appellants) against the Order-in-Appeal C. Cus. No. 577/2010 dated 28.9.2010 passed by the learned Commissioner of Customs (Appeals), Chennai.
2. Few facts which are necessary for understanding the controversy are that the appellants imported Ferro Molybdenum and filed two Bills of Entry dated 31.10.2008 and 19.11.2008. The goods were cleared on payment of basic duty @ 10% advolorem. Subsequent to clearance of the goods the appellants found that they were eligible for concessional basic duty @ 5% in terms of Notification No. 119/2008-Cus. dated 31.10.2008. Accordingly, they filed refund claims to that effect wherein Assistant Commissioner of Customs (Refunds) vide letter dated 25.11.2009 returned the claims as premature stating that the same might be filed after re-assessment of the bills of entry. The appellants thereafter approached the concerned Assessing Group along with documents for re-assessment. However, request of the appellants was turned down by the lower authority on the premise that any assessment order should be modified or reviewed by way of appeal as held by the Apex Court in the case of M/s. Priya Blue Industries 2004 (172) ELT 145 (SC).
3. The appellant aggrieved by the said order of the Deputy Commissioner of Customs (Group 3 & 4) dated 11.12.2009 preferred an appeal before the learned Commissioner (Appeals). The Appellate Commissioner rejected the appeal on the ground that the appeal has been filed beyond the period of limitation. Hence, the present appeal before this Tribunal.
4. It is submitted by the learned counsel for the appellant that the view taken by the Commissioner (Appeals) is not applicable to this case, since the Apex Court in the said decision of Priya Blue Industries (supra) has ruled out that an assessee cannot seek refund of duty without first challenging the order of assessment. The order of assessment can be modified either by filing an appeal or by causing re-assessment of the goods after amending the bill of entry. The learned counsel relied on the following decisions:-
(a) Hero Cycles Ltd. Vs. Union of India 2009 (240) ELT 490 (Bom.)
(b) Commissioner of Customs, Mumbai Vs. Global Vectra Heicorp 2013 (297) ELT 250
(c) Bansal Alloys & Metals Pvt. Ltd. Vs. Commissioner of Customs, Amritsar 2009 (240) ELT 483 (P&H)
(d) Share Medical Care Vs. Union of India 2007 (209) ELT 321 (SC)
5. The learned AR appearing for the Revenue while supporting the orders passed by the lower authorities submits that Section 149 will not be attracted in view of the assessment order having become final, no claim for refund could have been entertained.
6. We have carefully considered the submissions made by both the sides and perused the relevant records. This Tribunal has in a plethora of decisions directed the Department to amend the Bills of Entry in terms of Section 149 of the Customs Act, 1962 based on documents which were in existence at the time of import and thereafter to cause re-assessment. In the instant case, the appellant is claiming amendment and consequent re-assessment of the bill of entry since the notification No 119/2008 dated 31.10.2008 was in existence at the time of filing of bill of entry.
7. Section 149 and Section 154 of Customs Act, 1962 are reproduced below:-
SECTION 149: Amendment of documents Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorize any document, after it has been presented in the custom house to be amended:
Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorized 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.
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.
8. From the above, it can be seen that as far as Section 149 is concerned, amendment is to be allowed on the basis of documentary evidence which was in existence at the time when the goods were cleared, deposited or exported. The only restriction is Sections 30 and 41 of Customs Act, 1962 which relates to export and import manifest which are not allowed to be amended of when there is a fraudulent intention. In the case of amended document under Section 149, the amendment has to be allowed when a request is based on documentary evidence, which was in existence at the time of clearance of the goods. We also find that the decision of Honble High Court of Mumbai in Hero Cycles Ltd. Vs. Union of India (supra) relied upon by ld. Counsel is relevant and the relevant paragraphs 8 & 9 are reproduced below:
8.?In the instant case, the Petitioners admittedly, based on the said notification were being granted benefit of the notification previous to the imports in issue and also subsequent to the imports in question. In other words, both the parties were aware of the said notifications. If the Petitioner on account of an inadvertent error chose not to apply for the benefit, would that result in denial of the benefit. In our opinion that by itself would not be answer as a duty is cast on the authority to assess the goods and impose duty according to law which includes a statutory notification, if duty cannot be demanded if otherwise not payable. Once there be a power to assess there is a corresponding duty to assess according to law. The fact that the Petitioner has paid the duty under mistake of law and or in the instant case by oversight, cannot result in being assessed to duty which was otherwise not payable. In our opinion, this will be a case of manifest injustice and on the face of it erroneous.
The facts of this case being so obvious, this would be a fit case for us to exercise our extraordinary jurisdiction.
9.?Once we exercise our extraordinary jurisdiction, we will have to issue directions to the respondents to amend the original order of assessment. 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 (supra). The Petitioner no doubt has contended that he has not passed on the duties and as such the question of unjust enrichment would not arise in the matter. That is not for us to answer today. That would only be on an appropriate application being filed for relief after original orders of assessment which have been quoted in our judgment are modified.
9. In view of the decision of the Honble High Court of Mumbai which is squarely applicable and the direction given was that the assessing officer has a duty to assess according to the law and refusal to amend the document would result in an irregular assessment and therefore what was held by Honble High Court was that it was the duty of the officer to make amendment. It has to be noted that in that case also the issue involved was difference in rate of duty. The SLP filed by the Revenue was dismissed.
10.?In view of the fact that the Honble High Courts decision supports the claim of the appellant and we also find that in terms of provisions of Section 149 of Customs Act, 1962, the appellant is eligible for amendment. Accordingly, we allow the appeal with consequential relief to the appellant.
(Operative portion of the order was pronounced
in open court on 29.5.2015)
(P.K. CHOUDHARY) (R. PERIASAMI)
Judicial Member Tehnical Member
Rex
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