ITC LIMITED versus COMMISSIONER OF CENTRAL EXCISE, KOLKATA IV

Citation: [2019] 13 S.C.R. 357 · Decided: 18-09-2019 · Supreme Court of India · Bench: ARUN MISHRA · Disposal: Disposed off

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Judgment (excerpt)

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ITC LIMITED
v.
COMMISSIONER OF CENTRAL EXCISE, KOLKATA IV
(Civil Appeal Nos. 293-294 of 2009)
SEPTEMBER 18, 2019
[ARUN MISHRA, NAVIN SINHA AND
INDIRA BANERJEE, JJ.]
Customs Act, 1962 – ss. 17 and 27 (both prior to and post-
amendment by the Finance Act, 2011) – Assessment of duty – Claim
for refund of duty – Absence of any challenge to the order of
assessment in appeal – Maintainability of refund application against
the assessed duty  – On facts, appellant-paper manufacturer, paying
duty on the paper cleared from its factory – By a Notification, the
appellant availed complete exemption from duty – Upon receipt of
letter from the department, appellant realized its mistake in availing
exemption under the Notification and started paying duty on waste
paper/broke – Thereafter, appellant filed refund claim for the period
from July 2001 to March 2002 for an amount in respect of duty
paid on the said waste paper – Rejection of the claim by Assessment
Committee, Commissioner of Appeals and Tribunal – Appeal
thereagainst allowed – On appeal, held: Claim for refund cannot
be entertained unless the order of assessment or self-assessment is
modified in accordance with law by taking recourse to the
appropriate proceedings – It would not be within the ken of s.27 to
set aside the order of self-assessment and reassess the duty for
making refund – Provisions u/s.27 cannot be invoked in the absence
of amendment or modification having been made in the bill of entry
on the basis of which self-assessment has been made – Order of
self-assessment is required to be followed unless modified before
the claim for refund is entertained u/s.27 – In case any person is
aggrieved by any order which would include self-assessment, he
has to get the order modified u/s.128 or under other relevant
provisions of the Act – Thus, the order passed by the tribunal is
upheld and that by the High Courts are set aside and applications
for refund are not maintainable.
   [2019] 13 S.C.R. 357
357
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SUPREME COURT REPORTS
[2019] 13 S.C.R.
Disposing of the appeals, the Court
HELD: 1.1 It is apparent from the amended definition of
Section 2(2) of the Customs Act, amended by Finance Act, 2011,
that self-assessment, provisional assessment, re-assessment and
any assessment in which the duty assessed is nil, is an
assessment. Assessment includes self–assessment, when the
provision of self-assessment has been incorporated in Section
17(1), and corresponding change has been made in the definition
of assessment in Section 2(2). Earlier the word self–assessment
was not included in the definition of assessment. [Para 23]
[372-G]
1.2 Coming to the procedure of assessment of duty as
prevailed before the amendment of the Act prior to the
amendment made in section 17(1) by the Finance Act of 2011,
the imported goods or exported goods were required to be
examined and tested by the proper officer. After such examination,
he had to make an assessment of the duty, if any, leviable on
these goods. Under sub-section (3) of section 17, the proper
officer was authorized to require the importer, exporter or any
other person to produce any contract, broker’s note or any other
document as specified in the proviso and to furnish any required
information. Notwithstanding that the statements made in the bill
of entry relating thereto and the documents produced and the
information furnished under sub-section (3); but if it was found
subsequently on examination or testing of the goods or otherwise
that any statement in such bill of entry or document or any
information so furnished was not true, he could have proceeded
to reassess the duty. Where the assessment done under sub-
section (2) is contrary to the claim of the importer or exporter
regarding valuation of the goods, classification, exemption or
concession, speaking order shall be passed within 15 days
from the date of assessment of the bill of entry or the shipping
bill as the case may be as provided in section 17(5). [Para 32]
[382-C-F]
1.3 Under the provisions of section 17 as amended by
Finance Act of 2011, section 17(1) has provided to self–assess
the duty if any leviable on such goods by importer or exporter as
the case may be. Self–assessment is an assessment as per the
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amended definition of section 2(2). It is further provided that
proper officer may verify the self–assessment of such goods, and
for this purpose, examine or test any imported goods or exported
goods or such 

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