Amendment of Bill of Entry to Claim CVD Exemption After Five Years Not Allowed Without Reassessment: CESTAT Sets Aside Appellate Order [Read Order]

The Kolkata Bench of Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) set aside the Appellate order, holding that amending a Bill of Entry to claim Countervailing Duty ( CVD) exemption nearly five years after import was not permissible without reassessment.

The Department-appellant filed this appeal against the Order-in-Appeal dated 10.08.2022.The Commissioner (Appeals) had disposed of six appeals against orders passed by the Assistant Commissioner of Customs (Port), which led to the present challenge.

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In this case,Krish Fabrics India Pvt. Ltd.respondent-assessee,mported various types of fabric but did not claim CVD exemption under Notification No. 30/2004-CX dated 09.07.2004. Later, on 16.07.2021, the respondent requested amendment of the Bills of Entry under Section 149 of the Customs Act to claim the exemption.

The adjudicating authority rejected the request for amendment under Section 149 of the Customs Act, stating that it was a case of reassessment covered under Section 17(4) of the Act.

The assessee challenged this before the Commissioner (Appeals), who allowed the appeal, relying on decisions of the Bombay High Court (Dimension Data India Pvt. Ltd.) and Telangana High Court (Soni India Pvt. Ltd.).

The imports had taken place in September 2016, but the request for amendment was made only in 2021,after nearly five years. By then, the time limit to challenge the assessment or seek reassessment had expired.

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The Department argued in its appeal that no exemption was claimed initially, no duty was paid under protest, and the assessment was final. It viewed the amendment request as an attempt to bypass the limitation period and claim exemption indirectly. The Department relied on the Supreme Court’s ruling in ITC Ltd., which stated that reassessment was allowed only under Sections 17(3), (4), and (5).

The respondent’s counsel argued the case fell under Sections 149 and 154, claiming the missed exemption was a clerical error. They relied on the Dimension Data case, where the High Court allowed correction of the Bill of Entry within 2–3 months of import and ordered reassessment under Section 17(4). The Supreme Court had dismissed the special leave petition in that case.

However, the facts were different here because the amendment was sought after nearly five years. The Department initially rejected reassessment in Dimension Data, and it was unclear if amendment was sought first.

The High Court had distinguished the ITC Ltd. ruling, which dealt with refund claims without appealing self-assessment. The Supreme Court held refunds could only be granted after legally modifying the assessment through appeals under Sections 128, 149, or 154.

In this case, the petitioner requested reassessment by amending the Bill of Entry, not a refund, which was a key difference.

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The Department argued reassessment was allowed only under Sections 17(3), (4), and (5), and the Tribunal agreed reassessment had to happen when goods were under customs control at the time of import.

The assessee cited cases like Travancore Cocotuft, Stanley Engineered Fastening, and Uma Export, but the Tribunal found them irrelevant as those involved clerical corrections or reassessments within a reasonable time. Here, the amendment was made after nearly five years, so reassessment was not allowed.

The Bangalore Tribunal dismissed the appeal, stating the correction could not be treated as a clerical error under Sections 149 or 154. The appellant failed to claim the exemption at the time of assessment and tried to amend the Bill of Entry nearly six years later.

The tribunal held that amending a Bill of Entry to claim exemption required reassessment, not just correction. Since no clerical mistake was shown and the original assessment was based on the appellant’s declaration, the proper remedy was an appeal under Section 128.

It also noted Sections 149 and 154 allowed only minor corrections and could not replace the statutory appeal process to change assessments.

The appellate tribunal said reassessment and amendment under Section 149 were different legal processes and could not be used interchangeably. Any change in assessment required a valid appeal or higher authority’s direction, not just an amendment.

The bench observed that missed exemption benefits should have been claimed by appeal, and simply amending the Bill of Entry without reassessment had no legal effect. It found the Commissioner (Appeals) wrong to direct the lower authority to consider the amendment without setting aside the original assessment.

The two-member bench comprising R. Muralidhar (Judicial Member) and Rajeev Tandon (Technical Member) set aside the Commissioner (Appeals) order and allowed the department’s appeal.

To Read the full text of the Order CLICK HERE

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