2022 (11) TMI 351 - AT - Customs

Rejection of refund claim - rejection on the ground that Appellant had not challenged the assessment of Bills of Entry - HELD THAT - Hon‟ble Supreme Court in the case of PRIYA BLUE INDUSTRIES LTD. VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) 2004 (9) TMI 105 - SUPREME COURT learned Commissioner (Appeals) has held that where an assessment order is final a refund claim cannot be filed without first challenging the assessment that was done by the officer. On a plain reading of Section 154 of the Act, it is manifest that not only clerical or arithmetical mistake in any decision or order, but errors arising from any accidental slip or omission may, at any time, be corrected by the concerned authority - the mention of wrong HSN code 28092010 instead of correct HSN code 28111990 in Bill of entry was an accidental slip and leading to erroneous collection of anti-dumping duty. The point of dispute is as to whether before filing the refund claim of the excess duty paid due to errors / mistakes, the assessment order was required to be challenged. This very issue had been dealt with by the Tribunal in the cases of TATA IRON STEEL CO. LTD. VERSUS COMMISSIONER OF CUSTOMS (PORT), KOLKATA 2006 (7) TMI 363 - CESTAT, KOLKATA and CELCIUS REFRIGERATION PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI 2007 (3) TMI 446 - CESTAT, NEW DELHI wherein the Tribunal has held that mention of wrong currency in the bill of entry as the application of wrong exchange rate is a clerical mistake and when on account of such clerical error a higher amount of duty has been paid the re-assessment is not required before filing of refund claim, as the clerical mistake can be corrected in terms of the provisions of Section 154 of the Customs Act, 1962. In the present case the payment of anti dumping duty is not due to assessment or reassessment of Bills of entry but merely by a letter from the department, therefore there is nothing in the bills of entry to challenge. Even the amount collected thru a letter by the department was also not adjudicated by due process of law such as issuance of show cause notice and adjudication thereof, for this reason also there is no need to file any appeal in order to claim the refund of anti dumping duty paid by the appellant. Appeal is allowed.

Summary

Issues involved:
Refund claim rejection based on failure to challenge assessment of Bills of Entry.

Detailed Analysis:

Issue 1: Refund Claim Rejection
The appellant filed a refund claim for Anti Dumping Duty paid against two Bills of Entry. The duty was demanded based on a clerical error in classification. The Deputy Commissioner rejected the claim, stating the need to challenge the assessment first. The Commissioner (Appeals) upheld the rejection, leading to the present appeal.

Issue 2: Appellant's Arguments
The appellant argued that no assessment order on anti-dumping duty existed, and the duty was collected without proper basis. They highlighted the absence of any assessment order demanding the duty, questioning the need to challenge an assessment that never occurred. The appellant sought a refund based on the clerical error and lack of Anti-Dumping Duty liability.

Issue 3: Legal Interpretation
The judge referred to the Supreme Court's judgment in Priya Blue, emphasizing the need to challenge assessment for a refund claim. However, considering cases of clerical errors, the judge noted that refunds for such errors fall outside the scope of Priya Blue. The judge analyzed the inadvertent HSN code error by the appellant, distinguishing between Phosphorous Acid and Phosphoric Acid.

Issue 4: Precedents and Legal Basis
Citing precedents like Tata Iron & Steel Co. Ltd., the judge affirmed that clerical errors, not requiring reassessment, can be corrected under Section 154 of the Customs Act. The judge emphasized that the payment of Anti-Dumping Duty was not due to assessment but a departmental letter, hence not necessitating an appeal against an assessment order.

Conclusion:
The judge set aside the impugned order, allowing the appeal and granting consequential relief. The decision was based on the finding that the appellant was not required to challenge a non-existent assessment order before filing the refund claim. The judgment highlighted the distinction between clerical errors and formal assessments, ensuring fairness in refund claims based on inadvertent mistakes.