Page 210 - ELT_1st July 2020_Vol 373_Part 1

120 EXCISE LAW TIMES [ Vol. 373

(a) The importer has himself added Clean Energy Cess while filing the
declaration at the time of import.
(b) The importer had not disputed the imposition of Clean Energy Cess
at that stage.
(c) The provisional assessment was merely for the purpose of determi-
nation of the ship demurrage charges and the Assistant Commis-
sioner has, as requested by the importer, finalized the Bills of Entry
after reckoning the ship demurrage charges.
(d) Under these circumstances it is not open for the importer to chal-
lenge the Bills of Entry so finalized on a ground not taken before the
lower authority. The Commissioner (Appeals) therefore should not
have admitted the appeal or allowed it on this ground.
5. We have considered the contention of the Revenue and the facts and
circumstances of the case. It is true that the provisional assessment was sought
only for the purpose of ship demurrage charges. However, it is now an well-
established legal principle that a assessment which is provisional is provisional
for all purposes and at the time of finalization of the assessment, all factors which
are necessary for finalization of the assessment must be reckoned. For instance, if
the assessment is left open for questions of valuation, and subsequently it is
found that the classification also requires a change or some other licencing re-
quirement has to be examined, all these factors must be examined while finaliz-
ing the provisional assessment. There cannot be a provisional assessment which
is provisional for one purpose and not provisional for other purposes.
6. The second contention of the Revenue is that the importer, having
not contested the Bills of Entry and having themselves assessed their Bills of En-
try provisionally including therein the Clean Energy Cess, cannot challenge the
imposition of the Clean Energy Cess before the first appellate authority. In other
words, it is the contention of the Revenue that this aspect of the assessment
amounts to challenging their own self-assessment before the first appellate au-
thority. It is now settled by the Larger Bench of the Supreme Court in the case of
I.T.C. Limited (Civil Appeal Nos. 293-294 of 2009) [2019 (368) E.L.T. 216 (S.C.)]
that all assessments can be challenged before the first appellate authority includ-
ing self-assessments. Paras 47 & 48 of this judgment are reproduced below :-
“47. When we consider the overall effect of the provisions prior to
amendment and post-amendment under Finance Act, 2011, we are of the
opinion that the claim for refund cannot be entertained unless the order of
assessment of self-assessment is modified in accordance with law by taking
recourse to the appropriate proceedings and it would not be within the ken
of Section 27 to set aside the order of self-assessment and reassess the duty
for making refund; and in case any person is aggrieved by any order which
would include self-assessment, he has to get the order modified under Sec-
tion 128 or under other relevant provisions of the Act.
48. Resultantly, we find that the order(s) passed by Customs, Excise &
Service Tax Appellate Tribunal is to be upheld and that passed by the High
Courts of Delhi and Madras to the contrary, deserves to be and are hereby
set aside. We order accordingly. We hold that the applications for refund
were not maintainable. The appeals are accordingly disposed of. Parties to
bear their own costs as incurred.”

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