2016 (9) TMI 357 - AT - Customs

Refund of excess CVD paid - arithmetical error - requirement of reassessed bill of entry - certificate from chartered accountant regarding unjust enrichment - Held that - non filing or late filing of appeal against the original assessment on the bill of entry is not relevant and appellant can challenge the assessment by way of a refund application - an opportunity of personal hearing should be extended to the appellant by AC Refunds to explain their case. Appellant shall demonstrate before AC refunds that higher CVD paid in the first assessment was only due to clerical mistake based on documentary evidence - Department is also at liberty to examine the aspect of unjust enrichment - matter remanded - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Appeal against OIA No. 258/CUS(Apprg.)/KOL(P)/2013
- Calculation error in the bill of entry regarding Retail Sale Price (RSP/MRP/excess CVD)
- Request for reassessment considered as a refund application
- Time-bar aspect of filing appeal
- Rectification of an arithmetical misstatement within the powers of DC, NSCBI Airport
- Filing refund claim without challenging the assessment order
- Appellant's request for reassessment/rectification not addressed
- Pending refund claim with AC, Refunds, Air Cargo Complex, Kolkata
- Remand to AC, Customs Air Cargo Refund Section, Customs House, Kolkata

Detailed Analysis:
1. The appellant filed an appeal against OIA No. 258/CUS(Apprg.)/KOL(P)/2013, challenging a calculation error in the bill of entry related to Retail Sale Price (RSP/MRP/excess CVD). The appellant argued that the error was due to a higher RSP declared than the actual selling price, leading to excess CVD payment. The request for reassessment was treated as a refund application by the department based on correspondence and case laws cited.

2. The Revenue argued that the self-assessment was not challenged through an appeal and contended that no refund claim was filed by the appellant. The time-bar aspect of filing an appeal was emphasized by the Revenue, leading to the dismissal of the appeal as time-barred.

3. The first appellate authority rejected the appeal on the grounds of being time-barred, despite the appellant's argument that the case involved rectification of an arithmetical misstatement, falling within the powers of the DC, NSCBI Airport, with no time limit specified under Sec 154 of the Customs Act 1962.

4. The issue of filing a refund claim without challenging the assessment order was discussed, citing precedents where such claims were upheld based on clerical errors and wrong calculations, falling under Sec 154 of the Customs Act. The judgments highlighted that challenging the assessment order was not a prerequisite for filing a refund claim in cases of clerical errors.

5. The appellant's request for reassessment/rectification was not addressed, and no appealable assessment order was issued. The judgment emphasized that non-filing or late filing of an appeal against the original assessment on the bill of entry was irrelevant, as the appellant could challenge the assessment through a refund application.

6. The case was remanded to the AC, Customs Air Cargo Refund Section, Customs House, Kolkata, with instructions to consider the appellant's claim as a refund application pending with AC Refunds. The appellant was granted an opportunity for a personal hearing to explain the clerical mistake in the CVD payment, supported by documentary evidence, while the department could examine the aspect of unjust enrichment.

7. The appeal filed by the appellant was allowed by way of remand for further review and consideration by the AC, Customs Air Cargo Refund Section, Customs House, Kolkata, ensuring a fair opportunity for both parties to present their case.

Operative part of the order already pronounced in the court.