2013 (6) TMI 208 - AT - Customs

Refund claim related to excess paid duty - Rejection on the ground that same had been paid due to mention of wrong exemption notification which was due to clerical mistake - Held that - Goods imported are LDPE which are covered under Chapter 39 and both the Bills of entry filed by the appellant, they have claimed the benefit of notification No. 13/05. Though the appellant have pleaded that this notification is not applicable to the goods imported, on going through the notification, we find that this plea is totally wrong as S.No. 16 of the table annexed to this notification covers notes of Chapter 39 for which concessional rate of duty prescribed is 15%. Notification No. 21/02 Cus which was claimed subsequently by the appellant also covers the LDPE granules as Sr.No. 4 prescribes concessional rate of 10%. When both the exemption notifications were available and at the time of import, the appellant chooses to avail one particular notification No. 13/05 Cus and later on realizing that the other notification is more beneficiary, they were required to challenge the assessment by way of filing appeal against the same. They cannot claim the refund directly without challenging the assessment order in view of Apex Court judgment, in Priya Blue Industries Ltd. reported as 2004 (9) TMI 105 - SUPREME COURT OF INDIA . Thus, there is no infirmity in the impugned order. Appeal dismissed.

Summary

Issues:
- Incorrect mention of exemption notification in bills of entry leading to excess payment of duty
- Rejection of refund claims by jurisdictional Asstt. Commissioner
- Appeal filed before Commissioner (Appeals) challenging rejection of refund claims
- Interpretation of legal precedents regarding challenging assessment orders before filing refund claims
- Time limitation for filing refund claims

Analysis:

The appellant imported LDPE covered under Chapter 39 and mistakenly mentioned the wrong exemption notification in the bills of entry, resulting in the payment of excess duty. They later filed refund claims citing clerical error due to the wrong notification mention. However, the jurisdictional Asstt. Commissioner rejected the refund claims, stating that the appellant should have first appealed for the change of assessment before filing for a refund. The Commissioner (Appeals) upheld this decision, emphasizing the need to challenge the assessment before seeking a refund.

The appellant argued that mentioning the wrong notification was a clerical mistake, citing a Delhi High Court judgment and a Tribunal case to support their claim that challenging the assessment order was not necessary in such cases. They also contended that the refund claim was within the time limit for correction of clerical errors under Section 154.

The Respondent, on the other hand, relied on the Apex Court judgment in Priya Blue Industries to support the rejection of the refund claims. They argued that the appellant's choice of the exemption notification was intentional and not a clerical error. They further highlighted that both the mentioned notifications covered the imported goods, and the appellant should have challenged the assessment if they wished to avail the benefits of a different notification.

After considering the arguments from both sides, the Tribunal found that the appellant's selection of the incorrect notification was a conscious decision, not a clerical mistake. They determined that the appellant should have challenged the assessment before seeking a refund, in line with the Priya Blue Industries judgment. Therefore, the Tribunal dismissed the appeals, upholding the rejection of the refund claims by the lower authorities.

In conclusion, the Tribunal's decision was based on the interpretation of legal precedents regarding challenging assessment orders before filing refund claims and the conscious choice made by the appellant regarding the exemption notification. The time limitation for filing refund claims was also considered in the context of correcting clerical errors.