9911796707
TMI Blog2006 (5) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon order. 2. The relevant facts that arise for consideration are that the appellant imported consignments of shots and grits and filed Bills of Entries for home clearance, which were assessed as requested by the appellant. Subsequently a refund claim was filed by the appellant stating that they had paid excess duty. The said refund claim was scrutinized by the lower authorities and allowed. Revenue preferred appeals against the said orders, which were allowed by the appellate authority on the ground that once the Bill of Entries has been finally assessed then the route of the refund claim cannot be taken for the reassessment of the Bill of Entries. Hence these appeals by the appellants. 3. The learned advocate appearing for the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Del.) 4. The learned DR on other hand would submit that the review order passed by the Commissioner is as per the provisions of the Customs Act. It is also submitted that the order for filing the appeal by the Commissioner has all the requirements under the law. It is also submitted that the provisions of Section 154 cannot be invoked in these cases as the said provisions can be applicable only in the case of accidental omission and arithmetical errors, while in this case the appellant has not claimed the benefit of the notification when bill of entry was filed for clearances of the goods for home consumption. 5. Considered the submissions made by both sides and perused the records. It is the submission of the appellant that the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a which is not proper, legal and correct on the following ground :- 1. The B/E No. F-9780, dated 27-5-2003 was assessed finally by the assessing officer. The order of assessment was appealable order. However, M/s. Saw Pipes Ltd. did not choose to exercise the statutory right of filing an appeal but filed the refund claim. The sanction of the refund claim, when the correctness of the appealable order was not challenged by the party is not legal, proper and correct Therefore, I, C.M. Mehra, Commissioner of Customs, Custom House, Kandla hereby direct, Shri N.K. Sharma, Deputy Commissioner of Customs, Custom House, Kandla to file an appeal under Section 129D(4) of Customs Act, 1962 before the Commissioner (Appeals), Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a finding that the appeal filed before the appellate authority being a correct one, I take up the second point of the appellant i.e. the order-in-original is an order passed under Section 154 of the Customs Act, 1962. The provisions of Section 154 read as under : SECTION 154. Correction of clerical errors, etc. - Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be correct by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be. 9. It can be seen that the said provisions can brought in to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly they have paid the duty @ 40% basic. The difference of duty to be refunded is worked out as under: (emphasis supplied) 10. It can be seen that the appellant has himself admitted that they have paid the excess duty through oversight and erroneously. If that being the case the appellant should have challenged the assessment of the Bill of Entry instead of taking a short cut of filing the refund. The assessment of the Bill of Entries being unchallenged, have attained finality. Adopting the route of refund claim, they cannot seek to reopen the said final assessment. This is a settled law. The apex court in Priya Blue Industries Ltd s case [2004 (172) E.L.T. 145 (S.C.)] at paragraph 5 6 has held as : 5. Under Section 27 of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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