The Telangana High Court directed the Custom Commissioner to amend the Bill of Entry to enable the Importer to claim refund of Excess Excise Duty.
The Petitioner, M/s Sony India Pvt Ltd herein is a private limited company having its registered office at New Delhi. It is carrying on the business of manufacture of and marketing of different types of electronic goods and consumer electronics including mobile phones.
The petitioner contended that this reduced rate was not availed of by it as the respondent had taken a stand that such exemption is available only when the assessee has not taken credit in respect of the inputs and capitals goods under the CENVAT Credit Rules, 2004 for the manufacture of mobile phones; since the inputs and capital goods in the present case were procured and utilized outside India, the 2nd respondent was of the view that the reduced rate would not be available to importers like the petitioner; and during the above period, the EDI system did not permit availment of the lower rate of tax as per the Exemption Notification.
The petitioner contended that importers and itself were also eligible to avail of the benefit of the reduced rate of 1% under the Exemption Notification; and after the above decision by the Supreme Court, it sought to claim benefit of the Exemption Notification for import of Mobile handsets including cellular phones.
But the EDI System used for filing the Bills of Entry was not updated to make available the benefit of the said Notification to imported goods; the benefit of the Notification was not extended to petitioner, despite it seeking the same; and due to deficiency in the system, the benefit of exemption otherwise eligible was deprived to it and it was forced to pay CVD at merit rate.
The division bench of Justice M.S.Ramachandra Rao and Justice T.Vinod Kumar noted that it is the duty and responsibility of the Assessing Officer / Assistant Commissioner to correctly determine the duty leviable in accordance with law before clearing the goods for Home consumption. The assessing officer instead, having failed in correctly determining the duty payable, has caused serious prejudice to the importer / petitioner at the first instance. Thereafter, in refusing to amend the Bill of Entry under Section 149 of the Act, to enable the importer / petitioner to claim refund of the excess duty paid, the Assessing Authority / Assistant Commissioner caused further great injustice to the petitioner.
“The Assessing Authority has failed to consider the fact that Section 149 of the Act does not prescribe any time limit for amending the Bill of Entry filed and assessed. The power to amend under Section 149 of the Act is a discretionary power vested with the authority. Since, due to incorrect determination of duty by the assessing authority initially, the petitioner is compelled to seek amendment of Bill of Entry under Section 149 of the Act. Thus, the importer / petitioner cannot be penalized for what the authority ought to have done correctly by himself,” the bench said.
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