The Customs, Central Excise and Service Tax Appellate Tribunal (CESTAT), Mumbai bench has held that the appeal not be filed on the re-assessment of the Bill of Entry and therefore, the refund arising out of re-assessment of Bills of Entry is permissible.
The bench comprising Judicial Member Mr. Ramesh Nair and Technical Member Mr. C J Mathew was considering an issue whether refund can be rejected on the ground that no appeal was filed against the Bills of Entry under Section 128 of the Customs Act, 1962, when the said Bills of Entry were re-assessed by way of amendment under Section 149 of the Customs Act, 1962.
Earlier, the Commissioner (Appeals) held that since the appellants have not filed appeals against the Bills of Entry the refund is not legal and correct.
The Tribunal held that the refund was not filed against the assessment of Bills of Entry but the Bills of Entry were admittedly re-assessed by the assessing officer in terms of Section 149 of the Customs Act, 1962. Once, the Bills of Entry was reassessed by the Revenue thereafter if neither side is aggrieved with the said re-assessment, it attained finality.
“Once the reassessment is acceptable to both the sides and if any refund arising out of said re-assessment, no question of filing the appeal arises. Therefore the refund of the appellant is line of the judgment in the case of ITC Ltd. We find that the Hon’ble Jurisdictional Bombay High Court in the case of Dimension Data India Pvt. Ltd. (supra) in a writ petition filed under Article 226 of the Constitution of India, considering that if there is error in Bills of Entry the same can be rectified by amendment in terms of Section 149 of Customs Act,” the Tribunal said.
Allowing the appeal, the Tribunal held that “the Revenue admittedly, amended the Bills of Entry by re-assessing the same under Section 149 of the Customs Act, 1962. Once, the Bills of Entry has been re-assessed and the refund is arising out of it, there is nothing exist against which any appeal need to be filed. Therefore, the contention of the Revenue that appellant has not filed appeal against the Bills of Entry is absolutely incorrect. Accordingly, we are of the clear view that since the refund arising out of re-assessment of Bills of Entry neither side has grievance against such re-assessment of Bills of Entry, refund is clearly permissible. Accordingly, we modify the impugned order and allow the appeal, with consequential relief, if any, in accordance with law.”
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