Custom, Excise & Service Tax Tribunal
-Kolkata(Port) vs Jeet Corporation on 23 May, 2025
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No.75899 of 2022
(Arising out of Order-in-AppealNo.KOL/CUS(PORT)/AKR/393-398/2022
dated10.08.2022 passed by Commissioner of Customs (Appeals), Kolkata.)
Commissioner of Customs (Port), Kolkata
(15/1, Strand Road, Custom House, Kolkata-700001.)
...Appellant
VERSUS
M/s. Krish Fabrics India Pvt. Ltd.
.....Respondent
(16A, Synagogue Street, 2nd Floor, Kolkata-700001.)
WITH
(i) Customs Appeal No.75900 of 2022 (Commissioner of Customs
(Port), Kolkata vs. M/s. R.K. Impex & Company (India)); (ii)
Customs Appeal No.75901 of 2022 (Commissioner of Customs
(Port), Kolkata vs. M/s. R.K. Impex Pvt.Ltd.); (iii) Customs
Appeal No.75902 of 2022 (Commissioner of Customs (Port),
Kolkata vs. M/s. Jeet Corporation); (iv) Customs Appeal
No.75903 of 2022 (Commissioner of Customs (Port), Kolkata vs.
M/s. Jirawala Export Pvt.Ltd.);
(Arising out of Order-in-Appeal No.KOL/CUS(PORT)/AKR/393-398/2022 dated
10.08.2022 passed by Commissioner of Customs (Appeals), Kolkata.)
APPEARANCE
Shri S.Chitkara & Shri S. Debnath, both Authorized Representatives for the
Revenue
Shri Indranil Banerjee, Advocate for the Respondent (s)
CORAM:HON'BLE SHRI R. MURALIDHAR, MEMBER(JUDICIAL)
HON'BLE SHRI RAJEEV TANDON, MEMBER(TECHNICAL)
FINAL ORDER NO.76380-76384/2025
DATE OF HEARING :04.04.2025
DATE OF DECISION : 23.05.2025
.
2 Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 Per : RAJEEV TANDON :
The instant appeal hasbeen filed by the department against the Order-in-Appeal No.KOL/CUS(PORT)/AKR/393-398/2022 dated 10.08.2022.
2. The Ld.Commissioner (Appeals) vide the impugned order against which the Revenue is aggrieved, has disposed of six appeals against orders passed by Assistant Commissioner of Customs (Port), Appraising Group-III, Customs House, Kolkata,as all the aforesaid appeals before him involved a common issue. The following table gives a snapshot of the appeals considered by the Ld.Commissioner(Appeals):-
3. Briefly speaking the appellants imported different varieties of fabric.They did not claim CVD exemption in terms of Notification No.30/2004-CX dated 09.07.2004. Subsequently, the appellant vide letter dated 16.07.2021 applied for amendment of the said Bills of Entry under section 149 of the Customs Act, in order to avail the benefit of the aforesaid Notification. Before proceeding further it would be appropriate to place Section 149 of the Customs Act on record.:-
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] :3
Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 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.]
4. The request of the appellants for amendment under section 149 of the Customs Act was however turned down by the adjudicating authority/assessing authority and no such amendment under section 149 of the Act was allowed, pointing out that it was a case of re-assessment of the import documents as admissible under Section 17 (4) of the Customs Act, 1962.
5. Being aggrieved and dissatisfied with the said decision of the adjudicating authority the appellants filed appeal before the Commissioner(Appeals), which appeal was inter alia allowed by the appellate authority in the light of the decision of the hon‟ble Bombay High Court in the case of Dimension Data India Pvt.Ltd. v. Commissioner of Customs [2021 (376) E.L.T. 192 (Bom.)] and that of Telengana High Court in the case of Soni India Pvt.Ltd. v. UOI &Anr. [2022 (379) E.L.T. 588 (Telengana)].
6. It is also material to point out here, that the imports were carried out sometimes in around September 2016 and the request for the amendment for the first time appears to be preferred only in the year 2021 - i.e. after an interlude of nearly five years, by which time limitation period to challenge the order of assessment and/or seek a reassessment was over, several times over.
4Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022
7. The Revenue in its appeal has submitted that the appellant in the first place had neither claimed the benefit of said exemption nor paid any duty under protest. It is their case that the said assessment had attained finality and that having run out of limitation the appellant attempts an alternative route to claim the notification benefit,seeking amendment of the import documents. It is submitted by the Revenue that the assessing authority was very clear and had specifically pointed out that the impugned case was that of re-assessment and not of amendmentas visualized/made out by the respondents herein. The Revenue has submitted that the apex court in the case of ITC Ltd. vs. Commissioner of Central Excise, Kolkata-IV [2019 (368) ELT 216 (SC)] in para 44 has been very categorical to state that re-assessment is permitted only under Sections 17(3)(4) and (5) of the act ibid. We would like to place on record the following paras of the hon‟ble apex court‟s decision in the matter for ease of understanding:
"43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression „Any person‟ is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re- assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self- assessment. The order of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self- assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against "any order" which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra).
44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund 5 Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 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 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)."
8. The Ld.Counsel for the respondents however, during the course of the hearing before us, as also by way of written submission filed post hearing of the matter, has been emphatic to submit that their caseis squarely covered within the ambit of Section 149 of the Act. He also invites our attention to Section 154 of the Act which provides for correction of clerical errors, etc., inter alia stating that non-grant of exemption benefit which was admissible to the importers was no more than a clerical mistake. For sake of records, section 154 of the Customs Act, is extracted hereinbelow:
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.
9. The respondents,have essentially relied upon certain decisions of various High Courts in support of their proposition to state that the matter would lie within the confines of Sections 149/154 of the Customs Act,1962. We would deal these casein the subsequent paras.
6Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022
10. The hon‟ble Bombay High Court in the case of Dimension Data India Pvt.Ltd. v Commissioner of Customs [2021 (376) E.L.T. 192 (Bom.)] wasconcerned with classification of the imported goods. Vide the said order the High Court permitted the correction of the Bill of Entry in terms of Section 149 read with Section 154 of the Customs Act and directed the appropriate authority to thereafter pass an appropriate order under section 17(4). SLP filed against the impugned order was however dismissed, with the apex court refusing to entertain the petition under Article 136 of the Constitution of India. For the facts of the Dimension Data case, it may be pointed out that the Bills of Entry were self-assessed by the importer under a claim of classification as submitted by them. The Bills of Entry were facilitated in the Risk Management System (RMS) with remarks „no assessment and no examination‟. The short point for consideration before the Hon‟ble High Court was whether the said request for correction of inadvertent mistake in the self-assessed Bill of Entry and consequential passing of orders for re-assessment was legal and valid and as a corollary whether in a case of such nature the party was required to seek recourse to the remedy of appeal under Section 128 of the Customs Act. In this regard the hon‟ble High Court considered the various provisions of the Act. With reference to section 149. It held that-
"18. From a careful analysis of Section 149, we find that under the said provision a discretion is vested on the proper officer to authorise amendment of any document after being presented in the customs house. However, as per the proviso, no such amendment shall be authorised after the imported goods have been cleared for home consumption or warehoused, etc. except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, etc. Thus, amendment of the Bill of Entry is clearly permissible even in a situation where the goods are cleared for home consumption. The only condition is that in such a case, the amendment shall be allowed only on the basis of the documentary evidence which was in existence at the time of clearance of the goods."
As for section 154, the court held that -
"20. ....... Section 154 permits correction of any clerical or arithmetical mistakes in any decision or order or of errors arising 7 Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 therein due to any accidental slip or omission. Such correction may be made at any time."
11. It can be noted from thesaid order of the hon‟ble High Court that while the imports were made between March 15, 2019 & April 25, 2019 (both dates inclusive), the importer had sought correction of the said inadvertent error vide their letter dated 07.06.2019, i.e. within a timeframe of 2-3 months of import. In response to the said communication while declining the request,it was communicated that the importer had not obtained an order of re-assessment or appealed against the said self-assessment of the said Bills of Entry. It was only vide their communication dated 21.11.2019 that the importer sought re-assessment of the order in terms of Section 17(4) of the Customs Act read with Section 149 seeking suitable modifications to the Bills of Entry,which request was followed by way of reminders - oral and written. Having elicited no response from the department,thereafter the importer filed the impugned Writ before the hon‟ble High Court of Bombay. The facts of this case are materiallydifferent with that of the present matter. While in the case before the hon‟ble High Court the request for amendment was made within reasonable time lines of 2-3 months, in the present case such timelines are in the bracket of 5 years, i.e. virtually beyond all statutorily prescribed timelines. Secondly, in the said case despite reasonability of timelines the department did not concede the assessee‟s request for reassessment. Also it is not known, if any such request for amendment was also initiated, as it would be a sequel to the amendment undertaken.
12. In the aforesaid case the hon‟ble High Court did consider the hon‟ble apex court‟s decision in the case of ITC Ltd. vs. Commissioner of Central Excise, Kolkata-IV [2019 (368) ELT 216 (SC)], and sought to distinguish it by stating the following :
"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 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 8 Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 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 claimfor 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).
22.2Therefore, in the judgment itself Supreme Court has clarified that in case any person is aggrieved by an 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 before he makes a claim for refund. This is because as long as the order is not modified the order remains on record holding the field and on that basis no refund can be claimed but the moot point is Supreme Court has not confined modification of the order through the mechanism of Section 128 only. Supreme Court has clarified that such modification can be done under other relevant provisions of the Customs Act also which would include Section 149 and Section 154 of the Customs Act.
xxxx
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."
However, in this regard it is material to point out that the apex court in the ITC Ltd. case (supra) has categorically noted that "Reassessment is permitted only under Section 17(3), (4) and (5) of the amended provisions."
9Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022
13. Amongst other decisions, the Ld.Counsel for the appellant also relied upon, the following :
(A) Travancore CocotuftPvt.Ltd. v. Dy. Commissioner (Cus.), Kochi [2024 (389) ELT 172 (Ker.)].
The said case pertains toavailment of IGST refundby the exporters,for which exports, raw materials were imported under export promotion schemes whereby the exporter is permittedto import inputs under a claim for exemption from Basic Customs Duty and IGST. While dwelling on the said aspect, the hon‟ble High Court dealt with the issue concerning modification/amendment of the Bill of Entry. In para 17 of its order, the hon‟ble High Court observed that the ground taken by the department for rejecting the request for amendment of Bill of Entry in a self-assessment order is only by way of proper action under section 128 of the Customs Act does not hold good. After dwelling on the decisions of the Dimension Data India Pvt.Ltd. and Soni (India) Ltd. referred to above, the following was observed by the hon‟ble High Court -
"21. From a conjoint reading of the aforesaid provisions of the Customs Act, it is evident that customs authorities have the power and jurisdiction to make corrections of any clerical or arithmetical mistakes or errors arising in any decision or order due to any accidental slip or omission at any time which would include an order of self-assessment post out of charge."
14. It however be pointed out that the question impugned in the present matter is not with reference to whether the authoritywielded such powersfor correction of clerical or arithmetical mistakes or whether any amendment could be carried out under Section 149 of the Customs Act in the matter. The question impugned in the present matter is completelydistinct and the said distinction though subtle is crucial to distinguish the two cases. The question impugned herein is that without a direction from a superior authority and with no ingredients of Sectiuon- 17(3), (4) or (5) of the Customs Act getting attracted, would it be possible for carrying out reassessment of the assessed Bill of Entry by the assessing officer of his own sweet accord. Even if the Bill of Entry were amended for once, laced with the said aspect, is the question of timelines, though Section 149 does not lay down any such timelines for carrying out 10 Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 the amendment. Question is, when all reasonability of timelines had been lost, would it be appropriate to venture into such an exercise and to what avail. We therefore are of the view that the said judgment,would not come to be of any assistance for respondent.
(B) Stanley Engineered Fastening Pvt.Ltd. v. Authorized Officer, Sipcot Hi-Tech, SEZ, Kancheepuram [2023 (385) ELT 118 (Mad.)/(2023) 6 Centax 41 (Mad.)].
15. In the said order the hon‟ble High Court had held Public Notice No.88/2019 which stated "that no re-assessment shall be allowed unless order of assessment including self-assessment was duly modified by way of appeal" was improper. It may again be pointed out that it is not the question involved in the impugned matter, as to whether Section 128 is the only route in law laying down a path for re-assessment. In fact a careful reading of Section 17 would indicate that independent of Section 128, such an exercise at re-assessment can simply be undertakenin terms of section 17(3), 17(4).Thus the law does not stipulate, seeking recourse to section 128 as imperative for a re-assessment exercise. Viewedin the context, the said Public Notice may not be appropriate.We are of the view that the subject case law also does not come to be of any bearing in the matter, as the question involved therein was materially different. (C) In addition, the Ld.Counsel for the appellant also relied on the judgment of this Tribunal in the case of CC(Port), Kolkata vs. M/s. Uma Export Ltd.& Others [FO/77256-77262/2023 Dated 12/10/2023], where again the factual scenario was completely distinct and the Tribunal had held that the decision of the hon‟ble apex court in the case of ITC Ltd. was not applicable to the facts of the said case. The said case is also builtup on following the Section 128 route seeking re- assessment. As already pointed out by us that Section 17(4) of the Act does provide for a window of assessmentto be modified without following the appeal route and without a direction of a superior authority directing re-assessment but that alone and necessarily so is not the singular manner of action. To clarify, Section 17(4)is extracted below:
[SECTION 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.11
Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 ..................
(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.
However from the above, it can bevisualizedthatis it mandatorily prescribed that a direction from the superior authority, to bring about a re-assessment of the goods, is contemplated in law. The answer is a vehement "No". The proper officer himself is empowered to seek for the required documents,verify them or examine and test the goods, and in terms of Section 17(4) if the proper officer arrives at a conclusion that the self-assessment was not done correctly, is empowered under law to re- assess the duty leviable on such goods. But the same has to be carried out at the time of import, and not later say five years, as in this case. This is so that any verification, examination or testing of goods can only be undertaken as long as the goods are in the custody of the department.
Once the goods are cleared out of Customs, any verification/testing/examination of goods would not be conceivable.
(D) Sunil Steels vs. Commissioner of Customs, Cochin [Final Order No.20794-20795/2024 dated 03.09.2024 of Tribunal-
Bangalore].
16. This was undoubtedly a case of clerical omission as the appellant had at the time of assessment mentioned Notification No.18/2018-CE dated 17.03.2012 instead of Notification 12/2012-CE dated 17.03.2012, whereby the appellant was liable to enjoy the exemption benefit.Thus it was a case of wrong indication of a Notification Number. We are of the view that such cases would certainly be covered within the scope and ambit ofsection 149 read with section 154 of the Customs Act, for correction of clerical errors. This case being different from the issue impugned herein is clearly distinguishable and does not apply to the facts in the present matter.
17. The respondent, has also enclosed a copy of the Final Order in the case of Commissioner of Customs (Port), Kolkata vs. M/s. R.K.Impex & Co. in Customs Appeal No.75348 of 2014 [Final Order 12 Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 No.75478 of 2025 dated 25.02.2025], wherein the facts are materially different. What arises from the facts and circumstances of the said the case is the question regarding eligibility for benefit of exemption Notification No.30/2004-CE dated 09.07.2004. We do not find any reference to amendment or rectification or modification or re-assessment of the original order in the said case. Following extract of the order would reveal thus:
"2. The facts of the case are that the appellants imported silk fabric and claimed benefit of exemption of CVD (Additional Duty) on the strength of Notification No.30/2004-CE dated 09.07.2004 as amended by Notification No.15/2006-CE dated 01.03.2006 on filing the Bills of Entry dated 29.05.2012 and 23.07.2012 respectively. The adjudicating authority did not allow the benefit of exemption Notification. The said order was challenged before the Ld.Commissioner(Appeals) and the Ld.Commissioner(Appeals) relying on the various decisions of this Tribunal allowed the benefit of exemption Notification. Against the said order Revenue is before us.
3. Today, when the matter was called, we find that in the case of Soir International vs. Commissioner of Customs [(2023) 10 Centax 327 (S.C.)], the Hon‟ble Apex Court has not stayed the order of this Tribunal wherein it has been held that in cases of import pertains prior to 17.07.2015, the importers are entitled for benefit of exemption Notification No.30/2004-CE dated 09.07.2004 for non-payment of CVD.
4. Therefore, following the decision of this Tribunal in the case of Soir International (supra), and the fact is that the imports in this case are prior to 17.07.2015, we allow the benefit of exemption Notification No.30/2004- CE dated 09.07.2004. Consequently, we do not find any merits in the appeal filed by the Revenue. Accordingly, the same is dismissed."
[
18. The hon‟ble Supreme Court way back in 2004 (of-course not during the self-assessment regime) in the context of a claim for refund had held that once an assessment order is passed, duty would be payable as per that order and so long as the assessment order stood, duty would be required to be paid in accordance therewith. In the said case the hon‟ble apex court had followed its judgment in the case of Flock (I) Pvt.Ltd. [2000 (120) ELT 385 (SC)]The courts have persistently harped upon the importance of timelines and have come up with the expression "reasonable period", for exercise of any statutory action and generally 13 Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 held it to be about six months and for cases of exceptional circumstances as five years. In the present matter, the appellants have crossed all timeline thresholds as well,andhave sought the intervention,through the aegis of Section 149/154 for the said amendment to the Bills of Entry after almost six years.
19. While it is not in dispute that an importer can claim benefit of an exemption notification, if eligible, at any point in time; however for the purpose it is necessary that he has an assessment order to that effect, even if it be by way of a reassessment. So even if for argument sake, it is considered that changes sought were amendment or rectification of clerical errors, that alone would not be sufficient to achieve the desired result. There ought to be an appropriate assessment/re-assessment order to such an effect and it is settled law that for re-assessment, the original assessment order would need to be set aside, to pave way to be replaced by the revised assessment/reassessment order and it is thus a crucial link in the process for which at this juncture the only remedy lies in following the Section 128 route.
20. 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. Mere incorporation of new notification number or a tariff head would not mean and sanctify a reassessment of the document. It warrants a specific and categorical order to that effect. This can only be achieved upon first extinguishing the earlier order and revising and replacing it with a new one. To achieve this end, the Proper Officer would need a direction from an appropriate superior authority. Such a direction as contemplated in law can only emanate out of directions in appeal, hence the courts including the hon‟ble apex court have always stressed upon and held the imperative need in following the Section 128 route, as the appropriate course of action.
21. 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 14 Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 omission. Contrast to this, with the assessment of import/export documents undertaken by the Revenue, it cannot be construed that the "assessment" undertaken, by the department, was a clerical or arithmetical error. The exercise of assessment of the Bill of Entry is a statutory obligation cast upon the appellant as well as the authorities. It is an undisputed fact on record that the appellants themselves had filed the impugned import documents without a claim for exemption benefit which otherwise was apparently admissible. However, when the import goods having been assessed to duty without taking note of the exemption of notification, the only course available for the appellant was to challenge the impugned assessment and have the said assessment undone and obtain a fresh assessment with the said benefits and thereafter seek consequential benefit as would arise in law.
22. We also note and as also presented before us the provisions of Section 17, of the Customs Act,1962 as then existed, pertaining to assessment of duty were 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 same would meet the test of legal scrutiny.
23. We also note, from records that the orders of the adjudicating authority, as discussed in appeal order is well reasoned, coherently 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 import bills in the manner as aforestated. It is apparent that there is no arithmetical or clerical mistake in the assessments so done. The assessment without the claim for exemption benefit, is indeed a consequence of the conscious action taken, at the time of import. Irrespective of the fact of whether it being the right or wrong course of action, it cannot be considered as an error arising from an accidental slip or omission in the decision or order of the assessing authority, hence the 15 Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 question of invoking the provisions of Section 154 for correction of clerical/arithmetical error cannot be applied to in the present matter. 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 observation in the case, is undisputedly the law of the land and has been held so in a series of cases, and would be squarely applicable to the present case as well. Amendment, in law, carries a different connotation than assessment. Even in common parlance, the two terms cannot in itself lead to a revised outcome of the assessment proceedings.
24. Thus amendment of statutory document, by way of doing away a clerical/arithmetic oversight, cannot be a potential substitute to assessment/appellate proceedings. The rectification as sought, too, cannot be wished away as a minor error or omission in the processing of import documents. Assessment of the bill of entry is a 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. either by adopting the appeal mechanism as provided in law and permissible within the framework of Section 17. It cannot be disputed that in law the officers were then empowered to carry out the assessment of the import documents and obviously such assessment cannot be hypothetical or theoretical or conceptual but necessarily have to be in accordance with the law of the land. Nonetheless, even if erred (otherwise than by way of clerical/arithmetical aspects), the only remedy lies in having the said assessment repealed by an appeal mechanism by a direction from a superior authority as provided in law.
16Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022
25. In fact the hon‟ble Supreme Court has been very categorical in the matter, on the subject in the ITC Ltd. case and had noted that the:
"43. ................ The order of self-assessment is an order of assessment in terms of Section 2(2), and was appealable by any person 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 ..........".
26. In the matter of IBM India (P) Limited v. Commissioner of Customs (Appeals) [2024 (387) ELT 323 (T)], the Tribunal held that once an assessment is done, only on appeal, reassessment is possible and any demand/refund on account of valuation or for any other reason has to be within the frameworks of laws as laid down under Section 28/27 of the Customs Act, 1962. Therefore, Section 149 amendment cannot be read in isolation making these sections with regard to classification or valuation redundant.
27. We are of the view that reassessment of any assessment cannot be equated with an amendment under section 149. No parallels can be drawn between the two. Both are independent provisions meant to cater to specific arena of action. The Legislature, in the interest of justice, has not laid down any time limit under section 149, that does not mean that any changes should not be in tandem with the laws laid down for refund or demand. Given the same there will be no end seeking amendments which would result in utter chaos and unsettle the working under the statutory provisions.
The ratio of the judgment in the IBM India (P) Limited case is squarely applicable to the present matter.
28. In an identical case, in the matter of Tata Teleservices (M) Ltd. v. Commissioner of Customs (ACC & IMP) Mumbai [2019 (12) TMI 70] it is held that amendment of bills of entry was sought by the appellant for claiming the benefit of exemption which had earlier not been claimed or allowed at the time of assessment of Bill of Entry. Thus, the amendment claimed was not an amendment simplicitor, but was for 17 Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 purpose of changing the assessment order. It is settled law that assessment order could have been changed/modified only by way of a direction from a superior authority or an order arising in appeal filed before the Commissioner(Appeal). The assessing authority becoming functus officio, would no longer be empowered in law to change or modify his quasi - legal action, except as provided in law.
29. In the matter of Commissioner of Central Excise, Mumbai v. Electronics Corporation of India Ltd. [2011 (274) ELT 398] it is held that the benefit of notification can be claimed at any stage. This proposition is not disputed. However, the proper course for claiming the benefit of the notification was by way of filing appeal against the assessment order as held by the Hon‟ble Supreme Court in the case of ITC Limited, Priya Blue Industries and a host of other cases, which the appellant failed to do.
30. For the sake of completeness of our order, we would also like to mention 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, 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.18
Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022
31. In view of our findings aforesaid, we are of the view that the case law of Manik Sandhu [Final Order No.75563/2025] as enclosed with the written submissions filed by the appellant, is on a different facto-legal premise. We have elaborately discussed the present matter in earlier paras. Amendment is no substitute to assessment/re-assessment and cannot replace it, as the two terms apply in different context, have distinct overtones and outcomes in law. Amendment alone of import/export documents may not be sufficient in seeking the desired results. The two terms are not interchangeable. To derive the intended objective, the amended document, if any, would be required to be re- assessed in the light of such an amendment which alone can be done, once the assessment order is set aside by a direction from the superior authority. Suo moto of one‟s own accord, the authority cannot in itself undertake any re-assessment, having been rendered as functus officio. This logic and discourse also seeks to not only bring about the assigned objective and give a meaning to the different provisions of the statute like Section 17 (Assessment/Reassessment related), Section 128/Section 129 (Appeal related, Section 149 (Amendment related) and Section 154 (Correction of clerical errors related), it also defines the individuality and relevance of each of the provisions without reducing any of such a provision to dead wood. Also any interpretation outsmarting one provision against the other is bound to create chaos and confusion.
32. In view of our findings above, we are of the view that the route sought to be adopted by the Ld.Counsel by seeking amendment in terms of Section 149, that too after a prolonged period of several years for an omissionmade by them cannot be justified.As discussed above amendment and assessment/re-assessment signify two clearly distinct connotations importing distinct and separate meanings and encompassing different areas of action. We are thus not able to appreciate any merit in the view as canvassed by the Ld.Counsel.
33. An amendment simplicitor cannot lead to the consequence of demand of duty or a claim for refund, for which the original assessment done is required to be reversed by a process as known to law, as also held by the hon‟ble apex court in the ITC Ltd.case, we also would like to put it on record, that the ld.Commissioner has thus completely erred in directing the lower authority to "consider the amendment of the Bill of Entries ..................". There is nothing for consideration of the amendment, 19 Customs Appeal Nos.75899, 75900, 75901, 75902 & 75903 of 2022 as merely carrying out the amendment is of no consequence unless the Bills of Entry are re-assessed.None of the earlier assessments havebeen appealedat all; the outcome of such an amendment continues to hold fort, till such time it is set aside by the appropriate authority and a fresh assessment done revisiting the earlier assessment.
34. In view of our discussions above, we are of the view that the order of the ld.Commissioner(Appeals) is not in accordance with law and is therefore set aside.
The appeals filed by the department are allowed.
(Order pronounced in the open court on 23.05.2025)
Sd/- Sd/-
(RAJEEV TANDON) (R. MURALIDHAR)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
SB