COMMISSIONER OF CENTRAL EXCISE CHENNAI

Final Order Nos.659-709/dated 13-8-2004 in Appeal Nos .C/411-S451, 170,177/2002&252-253/99/MAS

Valuation (Customs)–Price reduction after clearance cannot be relied to reject transaction value –section 14 of Customs Act 1962. (para5)

Valuation (Customs )- Amendment of Bill of Entry –It means altertion /addition /deletion of particulars allowed at discretion of proper officier –It does not mean reassessment of Bill of Entry –Section 14 and 149 of Customs Act,1962. (para 5)

CASES CITED

Albert David Ltd v.Commissioner –2004(168) E.L.T.462(Tribunal) –Referred (para7)

Birla VXL Ltd .v. Commissioner-2002(145)E.L..T..614(Tribunal)-Relied on (paras3,6)

Collector v.Flock(India)pvt lltd.2000(120)E.L.T.285(S.C)---Followed (para3,6,7)

Commissioner v.HCL-perot Systems Ltd-Final Order no.213/2003-B dated10.3.2003-Relied on (para3,6,7)

Faxtel System (India)pvt ltd.v.Commissioner –2004(169)E.L.T.265(Tribunal-LB)-Followed (para 6,7)

HCL perot System Ltd v.Commissioner –2004(165)E.L.T.A477(S.C.)-Relied on (para 3,6,7,)

Hinadlco Industries Ltd .v. Commissioner 1997(96)E.L.T.477(Tribunal)-Refferd (para2,3)

Hindustan petroleum Corp.Ltd .v.Commissioner -2003(156)E.L.T.425(Tribunal)Distinguished (para2,3,7,8,)

J.M. INDUSTRIES v.Commissioner –2003(156)E.L.T.977(Tribunal)-Relied on (para3,6,)

(Karnataka power corpn Ltd.v, Commissioner –2002(143)E.L.T.482(S.C.) Distinguished (para 2,3,7,8,)

Motilal Dulichand (p) Ltd-Final Order No.590/2002-A,dated 22-11-2002-Relived on (paras6,7,)

Motilal Dulichand (p) Ltd .v.Commissioner-2003(157)E.L.T.A265(S.C.)-Relied on (para 6)

Priya Blue Ind Ltd,v, Commissioner –2002(148)E.L.T.809(Tribunal) Relied on (para 6)

Priya Blue Industries Ltd v.Commissioner-2004(170)E.L.T. A308(S.C)-Refferd (para 6)

Priya Holding pvt ltd .v..Commissioner –2003(153)E.L.T.(Tribunal)—Relied on (para 3,6,)

Sanghi Medical Centre Pvt Ltd .v.Collector-1997(95)E.L.T.609(Tribunal)-Relived on (paras 2,3,5)

S.Kumars LTD.v. Commissioner –2002-(!41)E.L.T.146(Tribunal –Refferd (para3)

S.Kumars LTD. V.Commissioner –2003(153)E.L.T.217(Tribunal-LB)-Relived on (para6)

Super Cassettes Industries Ltd.v.Commissioner –2003(162)E.L.T.1148(Tribunal)Relived on (para 6,7)

Super Cassettes Industries Ltd .v.Commisioner - 2004(163)E.L.T. A.116(S.C.)Reffered (para 6)

REPRESENTED BY: SHRI R.RAGHAVAN Advocate, for the Appellant. Shri C.Mani. JDR ,for the Respondent.

(Order per: P.G.Chacko, Member (J).- These are appeals filed by M/S Ashok Leyland Limited against orders passed by the Commissioner of Cenral excise (Appeals).The lower appellate authority upheld the orders passed by the original authority rejecting the refund claims of the assessee. The refund claims were fifty- one in number ,which were in respect of goods imported and clleared under an equal number of Bills of Entry over a period of time . It appears from the records that the appellants had placed orders for imports between March and September 1995.where there was previous import of like goods , the purchase order reflected the price at which such goods had been prevviously imported .Where there were no previous imports of like goods,the price was indicated in the purchase order as ‘’ PTBA’’(price to be agreed).The subject imports took place between December 1995 and May 1996. The goods were assessed on the basis of the invoice price and duty paid accordingly. Subsequent to clearance of the goods against such payment of duty , the appellants negotiated with their suppliers and obtained reduction of price of such goods and latter issued credit note to the former for differential price (difference between the price indicated in the invoice and the reduced price ). The refund claims in question, which were based on these credit notes, were filed for the differential duty the differential value of the goods. These claims have been rejected. Hence these appeals.

5. We have carefully examined the submission. The refund claims in question are based on the price of the goods reduced in negotiations between the appellants and their suppliers after the goods were assessed to duty and cleared on payments of assessed duty. What was paid by the appellants was the duty assessed on the basis of value indicated in the relevant invoices .The transaction value at the time of assessment was the value indicated in the invoice and the same was accepted by the assessing authority, Duty was paid on that basis later on , negotiations took place between the appellants and their supplier leading to reduction of price and the later issued credit note to the former in the respect of the different ial price .The refund claims filed by the appellants are in respect of the duty paid on the differential value. It has been held by the lower authorities

to the effect that it was not permissible in law to reassess the Bill of Entry under

Section 149 of the Customs Act on the basis of posterior evidence furnished by the importer after clearance of goods.Ld.JCDR has particularly relied on the proviso to Section 149 of the Customs Act, which reads as under:

“149 Amendment of documents.-Save as otherwise provided in sections 30 and 41,the proper officer may, in his discretion ,authorize any documents after it has been presented in the Custom house, to be amended: provided that no amendment of a Bill of Entry or shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse ,or the export goods have been exported ,except on the basis of documentary evidence which was in existence at the time the goods were cleared,deposited or exported, as the case may be.”

JCDR has submitted that any amendment of Bill of Entry after the imported goods have been cleared for home consumption or deposited in warehouse is not permissible except on the basis of documentary evidence which was in existence the time of clearance of the goods or deposit in warehouse as the case may be.The reduced prices which resulted from subsequent negotiations between the appellants and their supplier were not in existence at the time of clearance of the goods and,therefore there was no question of any reassessment of the Bill of Entry under section 149 after the clearance of the goods. Obviously this argument of Id.JCDR is based on an assumption that a Bill of Entry can be reassessed under Section149, which Is a .wrong assumption . Amendment of a Bill of Entry under section 149 only means alteration of any particulars therein ,or addition of any particulars thereto, or deletion of any particulars thereform. I t is something to be done by the person who has presented the Bill of Entry ,if he is authorised so to do by the proper officier of Customs. This is abundantly clear from the language of section 149. The provision does not authorise reassessment of Bill of Entry .It is onlt conferring discretion on the proper offiicier of Customs to permit the importer to amend his bill of entry subsequent to clearance of the goods on the basis of goods of anterior evidence . In the present case the reduced prices were not in existence at the time of clearance of goods and therefore the proper officer of customs was barred. under the proviso to section 149, from allowing the importer to amend the declared value of the goods in the Bill of Entry The appellants did not apply for such amendment either. Hence Section 149was not applicable to the facts of the case. The provision appears to have been erroneously invoked by the lower authorities to reject the refund claims . o n this limited point ,the appellants seem to be supported by the Tribunal' decision in Sanghi Medical Centre (supra) wherein it was held that a refund claim was not laible to be rejected by invoking Section 149.

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