THE Story so far: from DDT 2683 11 09 2015

WHAT do you do when you forget to claim an exemption notification in a Bill of Entry filed by you and self assessed, duty paid and goods cleared? How can you rectify this situation? The Department may not agree to a re-assessment and you cannot go in appeal against your own assessment.

In a recent meeting of the Trade Facilitation Committee in JN Customs, a Customs Broker raised an issue that after introduction of Self Assessment, the Appellate Commissioner holds that Appeal can be entertained only if Re-assessment or order of assessment is issued by the Department whereas the Appraising Group takes a view that assessment done, whether self or not, is an assessment order as was done prior to the introduction of Self Assessment. As of now, in most cases of this nature Commissioner (Appeal) is remanding the matter.

He informed Commissioner that re-assessment/amendment u/s149 of the Customs Act is not allowed in cases where importer by mistake forgot to claim notification benefit for which he was entitled.

Commissioner informed the members that JNCH has already taken up this issue with Board.

In the meantime, the Mumbai Bench of the CESTAT in a case of an importer from Nagpur, held that if the Customs duty was paid in excess under a self assessment of bill of entry and borne by the appellant, for claiming of refund of excess paid duty, the appellant was not required to challenge the assessment of bill of entry. The matter was remanded to ascertain unjust enrichment. (Suryalaxmi Cotton Mills vs Commissioner of Central Excise, Nagpur - 2014-TIOL-3015-CESTAT-MUM) In this case, the importer did not claim CVD exemption to the tune of Rs. 1.34 crores and the department rejected the refund claim on the ground that the assessment order was not challenged. It was self assessment - how do you challenge self-assessment? Though the Department has no answer, it has no qualms about rejecting the refund claim. Mumbai Customs Commissioner says, he has referred the matter to the Board. Obviously, Board does not clarify things that easily.

The issue cropped up again last week in the Trade Facilitation Meeting of JN Customs, Mumbai. The above CESTAT order was brought to the Commissioner's notice.

The Commissioner replied,

No decision has been taken by the concerned Commissionerate on the issue as to whether department would file an appeal against the said Tribunal Order. The matter will be examined after any communication is received from the concerned Commissionerate. If the said Order is accepted by the department, a reference will be made to the Board before issuance of suitable instruction to Refund Section.

The issue came before the meeting of the Trade Facilitation Committee in JN Customs at its meeting on 27.8.2015.

The Commissioner informed the members that no information has been received from the Nagpur Commissionerate that whether they are appealing against the CESTAT order. The department is still awaiting response from them. The Commissioner urged the members of the trade that in case of any refund arising on account of reassessment of Bills of entry, the refund claim may be filed.

The issue is pending for more than eight months and the Mumbai Customs Commissioner is not able to get the information from his Nagpur counterpart as to whether the latter is contemplating an appeal against the CESTAT Order. Even if he had sent a pigeon, it would have come back with the information. And remember even if the CESTAT order is accepted by the Department, the JN Customs Commissioner is not going to grant refunds. In that case he would make a reference to the Board. In the meanwhile, the poor importers who have claimed refunds are doomed.