CESTAT Mumbai Holds Amendment Of Bills Of Entry U/S 149 Customs Act Is Legally Recognised Mode Of Modifying Assessment

A Bench comprising Customs, Excise and Service Tax Appellate Tribunal Member (Technical) M.M. Parthiban held that once the Bills of Entry were reassessed and amended by the proper officer under Section 17 read with Section 149 of the Customs Act, 1962, the statutory requirement for claiming refund under Section 27 stood fully satisfied.

The case in hand arose from imports of mobile phones made during January–March 2015, where the importer had initially paid CVD at the higher rate of 12.5% due to reliance on a CBEC circular. Subsequently, relying on judicial precedents, the assessee sought the benefit of a concessional 1% CVD under the relevant excise exemption notification.

The proper officer reassessed the Bills of Entry and granted the benefit, following which a refund of ₹32.93 lakh was sanctioned by the original authority.

However, the Commissioner (Appeals) overturned the refund, holding that in the absence of a formal reassessment by way of appeal, the refund was not maintainable in view of the Supreme Court's ruling in ITC Ltd.

Aggrieved, the assessee approached the Tribunal.

Allowing the appeal, the CESTAT observed that amendment of Bills of Entry under Section 149 is a legally recognised mode of modifying an assessment, and such modification need not necessarily be achieved only through appellate proceedings under Section 128. The Bench noted that the reassessment had already been carried out by the customs authorities themselves and had attained finality, as the Department did not challenge it.

The Tribunal further emphasised that refund proceedings are in the nature of execution proceedings, and where a valid reassessment already exists, the refund authority cannot deny the refund by reopening the issue of assessment. It also found that the assessee had successfully discharged the burden of proving absence of unjust enrichment through documentary evidence and a Chartered Accountant's certificate.

On limitation, the Bench held that the right to claim refund arose only after reassessment/amendment of the Bills of Entry, and therefore the refund application was well within the prescribed time.

Holding that the impugned order was inconsistent with the Customs Act and binding judicial precedents, the Tribunal set aside the order of the Commissioner (Appeals) and restored the refund with consequential relief.

Case Title: Drive India Enterprises Solutions Limited Vs. Commissioner of Customs (Import), ACC, Mumbai

Case No.: Customs Appeal No. 85417 of 2022

Appearance for Appellants: Shri Ananta Khandait

Appearance for Respondent: Shri Dinesh Nanal