Self-Assessment of the import of goods under Customs has been implemented with effect from 8.04.21 as per the Finance Act, 2011, thereby making suitable changes to relevant Sections 17,18, 46 & 50 of the Customs Act,1962.   Self-Assessment as per Sec.17(1) inter alia requires importers/exporters to correct declare value, classification, description of goods, exemption notification etc. and self-assess the duty there on if any.

 With the above, the importers are fully responsible for importing / exporting of goods including providing correct declarations, HSN Classification, identifying correct rate of duty under Customs / IGST, availing exemptions etc.  In case anything is found incorrect at the later point of time either by the Customs Audit (or) and other statutory scrutinization, the Assessee shall be responsible for answering the same.

As soon as the defects are noticed, Customs Department used to issue a Pre-Consultation Notice informing the assessee to response to the notice. In case of reply is not satisfied, Department has right to issue a SCN under Section 28(4) for the recovery of duty (short payment) along with Interest and Penalty.  

But,a procedure is set-out under Sec.149 of Customs Act, which enable the Customs Department to amend the BoE which includes reassessment of BoE as per the request of Assessee. In mostof the times /cases, Customs Department does not consider it passively.    

The reasons are such that:

• The “Finality of Assessment” Doctrine: Ever since thethepreme Court’s landmark judgment in ITC Ltd. v. Commissioner of Central Excise, the department views a self-assessed BoE as an official, binding assessment order. They argue that once goods are cleared for home consumption, the assessment reaches “finality” and cannot be casually disrupted. [
• Discretionary Power: Department argues that it is the discretion of the Department to accept or reject the request for amending the BoEs and not a mandatory.
• Forcing the Appellate Route: Officers routinely claim that they lack the jurisdiction to alter a finalized assessment under Section 149 (Amendment of documents) or Section 154 (Correction of errors). They insist that the importer’s only legal recourse is to file a formal appeal under Section 128, passing the burden of adjudication up to higher judicial forums. [
• Fears of “Belated” Claims: The department resists re-opening entries based on retroactive benefits, such as an importer trying to apply a favourable Supreme Court judgment from another company’s case to their own historical, cleared shipments.
• Shift to Self-Assessment: Under the current regime, the legal onus to correctly declare values and exemptions is entirely on the importer. Customs authorities look unfavourably on importers trying to correct their own “oversights” after the cargo has left the port.

However, various Courts have already held that “reassessment (amendment in BoE) must have been undertaken; and it shall not be the arbitrary decision of Customs Dept.

In the case of Sony India Private Limited, 2022, (379) ELT 588, (Telangana), Hon’ble Supreme Court (SC) has upheld the decision of the Telangana High Court (HC) that there is no time limit for amendment in the Bill of Entry (BoE).

The Telangana HC had held that to claim a refund of customs duties wrongly paid, there is an additional remedy of amendment of the BoE apart from the remedy of appeal against the assessment order.

The HC had further held that the petitioner could not be penalised due to incorrect determination of duty by the assessing authority and allowed the petitioner to amend the BoE u/s 149 of the Customs Act, 1962 (Customs Act).

Result: Despite the various Courts Orders, due to refusal of reassessment of BoEs by the Customs Department, which claimed by the Department as “discretionary power”; the differential duty viz., BCD, IGST are payable only through e-receipt.

Issues under GST:

Since GST is paid in the case of revision in Customs Duty, only through e-receipt (Challan), the IGST cannot be made available to the assesses(s) due to:

1: Non Reflection Receipt Details in GSTR2B/2A as per the Sec.16(aa):

16(aa) the details of the invoice or debit note referred to in clause (a) has been furnished by the supplier in the statement of outward supplies and such details have been communicated to the recipient of such invoice or debit note in the manner specified under section 37;”. The CBIC vide Notification No. 39/2021–Central Tax dated December 21, 2021 notified the below mentioned amendments made vide Section 109 of the Finance Act, 2021 w.e.f. January 01, 2022:

Since the e-challan is not routed through ICEGATE, it would not get reflect in the GSTR2A Hence,

2: Encountering Document for taking GST: Payment is done through e-challan, which  is not a document for availing as per the Rule 37- of GST Rules since Customs Department is not taking reassessment of BoE.

3: Time Limit for taking GST

As per Section 16(4) of the CGST Act, the deadline to claim Input Tax Credit (ITC) for any invoice or debit note is the earlier of these two dates:

1. November 30th of the next financial year.
2. The actual date of filing the relevant Annual Ret

In the above circumstances, the assessee is unable to take GST credit since the Notice  is issued invoking extended period which automatically covers suppression of facts, wilful etc.

Conclusion: In view of the above reasons, the CBIC should issue a categorial instructions to Departemental Officers, which should be a binding nature, to adhere “Reassessing of BoE(s)” in case of issues arising on account’ of,  payment of  differential Customs Duty which resulting IGST payment on account of:

• Wrong Classification of goods
• Wrong valuation of imported goods
• Applying incorrect exemption
• Varying description or quantity of goods

Re-Assessment of BoEAdvantages

1.Assesse’s “Statutory Concession” (claiming IGST) is protected.

2.No loss to the exchequer as the entire exercise is revenue neutral.

3. Reassessment of BoE is a remedial action granted by the Customs Provisions.