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TMI Blog2014 (9) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... ound instead of US$ or like. Mistake in the digits relating to value or rate of duty. In fact, while filing the Bill of Entry invariably the importer or the CHA indicates the value as per the Customs Act, indicates the tariff heading as also the exemptioin notification. The proper officer scrutinizes and checks the claim and thereafter assess the Bill of Entry. The decisioni of the Hon’ble Single Member in the case of G.S. Metalica [2007 (8) TMI 507 - CESTAT, MUMBAI] is, therefore, per incuriam and cannot be applied in other cases. In the case of Shri Hari Chemicals Export Ltd. [2005 (12) TMI 95 - SUPREME COURT OF INDIA], the issue before the Hon’ble Supreme Court was whether merely a wrong mention of statutory provisions can lead to denial of benefit. - in the said case, there was a mistake in mentioning the Rule 56A and Rule 57A and in it is in those circumstances, the Hon’ble Supreme Court has taken the said view. In the present case, there is no such mistake. Another case of quoted is that of Bennet Coleman & Co. Ltd. (2008 (7) TMI 204 - CESTAT BANGLORE). In the said case, there was introduction of additional Duty with effect from 1.3.2006 and during the initial period, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that bar of unjust enrichment is applicable which was challenged by them before the Commissioner (Appeals). The Commissioner (Appeals), without appreciating the merits of the case, dismissed the appeal on some other ground holding that the refund claim is not maintainable without challenge of the assessment of Bill of Entry. He further submitted that the view taken by the Commissioner (Appeals) is not correct. In fact, at the time of filing of the Bill of Entry, the appellant were entitled for the exemption under Notification No. 11/97 and the adjudicating authority at that time has not given be the benefit of the Notification. Therefore, they paid the duty which was not payable by them at all. When they realised that they have paid the duty which was not payable, they filed the refund claim. Therefore, the decision in the case of Flock (India) Pvt. Ltd. is not relevant to the facts of this case. He relied on the decision in the case of Bennet Coleman Co. Ltd. vs. Commissioner of Customs, Bangalore reported in 2008 (232) ELT 367 (Tri.-Bang.)= wherein the Tribunal has held that when the goods are subjected to Customs Duty, it is the responsibility of the assessing officer to cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned AR strongly opposed the contention of the learned consultant and specifically relied on the decision of the Tribunal in the case of Super Cassettes Industries Ltd. vs. Commissioner of Customs, Kolkata 2003 (162) ELT 1148 (Tri.- Del.) wherein it wwas held that the argument of the learned counsel that the Commissioner (Appeals) has no power to look into the ratio laid down by the apex court judgment in the case of Flock (India) Ltd. (supra) is wholly misconceived. 5. Heard both sides. 6. After hearing both sides we find that the sole issue in this case is that whether in the facts and circumstances of the case, the appellant can file a refund claim without challenging the assessment of Bill of Entry or not? 7. The issue has been dealt by this Tribunal in the case of Bennet Coleman Co. Ltd. vs. Commissioner of Customs (supra). This issue was further dealt by this Tribunal in the case of Sesa Goa Ltd. vs. Commissioner of Central Excise, Goa 2010-TIOL-1729-CESTAT-MUM, and observed as under: 9. On careful examination of the submissions made by both sides, the core issue in this case is that whether the refund claim filed by the appellants in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper officer for assessment, there was a decision of the apex court in the case of TISCO (supra) wherein it was held that no additional duty of customs (cess) is payable on import of coking coal. It is an admitted fact that while assessments were made in respect of the appeals No.C/759/09 to 764/09 and C/767/09 the proper officer omitted to take note of the decision of the Hon'ble apex court in the case of TISCO (supra). Section 154 of the Customs Act, 1962 deals with the situation where there is a clerical or arithmetical mistakes in any decision or errors arising therein from any accidental slip or omission at the time of assessing the Bill of Entry and same can be corrected by the proper officer. In these appeals, the proper officer failed to take the cognizance of the decision in the case of TISCO (supra) while assessing the Bills of Entry which can be termed as accidental slip or omission. As per the law dictionary 'omission' means neglect or failure to perform what the law requires and in this case law requires to assess the Bill of Entry after taking note of the decision of TISCO which was omitted by the proper officer. If for such omissions or errors committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cords relating to customs duty are maintained properly and correctly and that such records should represent the correct state of affairs. Almost a similar power can be found conferred on the Civil Court by Section 152 of the Code of Civil Procedure. All the four categories of errors enumerated by us above are mentioned in Section 152 CPC also. 16.1. In the case of Bennet Coleman Co. ltd. vs. Commissioner of Customs, Bangalore - 2008 (232) ELT 367 (Tri. - Bang.) this Tribunal has held that where the assessing officer had omitted to give effect to an exemption notification in respect of certain goods imported. Assessee therein on realizing the fact that benefit of exemption notification had not been extended, filed a claim for refund which was rejected on the same ground as in the instant case. The Tribunal while dealing with the assessee's appeal held as under:- 7. We have gone through the records of the case carefully. The appellants imported Newsprint and filed the Bills of Entry. The assessment is carried out by the assessing officer. When the goods are subjected to Customs Duty, it is the responsibility of the assessing officer to correctly assess the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cases of Flock (India) Ltd. and Priya Blue have been distinguished. In these circumstances, we are of the considered view that the omission can be corrected under Section 154 of the Customs Act, 1962. Therefore, the appellant is rightly entitled for the refund of the amount, which was collected without extending the benefit of an unconditional exemption notification. For the fault of the assessing officer, if the importer is compelled to pay huge revenue, it would definitely amount to mis-carriage of justice. Hence, we allow the appeal. 16.2. In the case of G.S. Metalica vs. Commissioner of Customs (Import) - 2007 (217) ELT 466 the Tribunal held that the omission to apply the correct rate of duty could be rectified by the proper officer even during refund proceedings and the Tribunal has further observed as under:- 10. I have considered the rival submissions. In an identical case, this Hon'ble Tribunal in the case of VST Industries Ltd. v. CC, Mumbai reported in 2007 (207) E.L.T. 513 (Tri-Mum.) = 2007 (5) S.T.R. 59 (Tribunal) has held that the ratio of judgment in the case of Priya Blue Flock (India) would not come in the way of Customs Officer while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en corrected by re-assessing the Bill of Entry and arrive at a correct liability in the proceeding relating to refund. 18. The Hon'ble Punjab and Haryana High Court in the case of Bansal Alloys Metals Ltd. vs. CC-2009 (240) ELT 483, while dealing with the statutory appeal filed by the appellant in terms of Section 130 of the Customs Act, 1962, has held that it was the responsibility of the assessing / proper officer to assess / re-assess the Bill of Entry and correctly determine the duty leviable in accordance with law. Having failed to do so, the proper officer had caused great injustice to the appellant and it was open to the appellant under Section 27 of the Act without recourse to challenging the assessment on the Bill of Entry in terms of provisions of Section 149 of the Customs Act, 1962 which permits amendment of a Bill of entry after clearance of goods for home consumption based on documentary evidence which was on record at the time of clearance of the goods. 19. In these appeals also when the appellants imported the impugned goods it was on record that the decision of TISCO (supra) passed by the Hon'ble apex court that no cess is payable on coking coal at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt the refund clam of the appellant. With these observations the appeal is disposed of by way of remand. (Pronounced in Court on ____/12/2011) Per: P R Chandrasekharan: 10. I have carefully gone through the order passed by my learned brother, Member (Judicial). However, I am unable to agree with the findings recorded therein for the reasons enumerated below: 10.1 Hon ble apex court in the case of Collector of Central Excise, Kanpur vs. Flock (India) Pvt. Ltd. reported in 2000 (120) ELT 285 (S.C.) dealt with the question in a case where the Assistant Collector of Central Excise passes an order classifying a product under a particular tariff item and the said order, though appealable is not challenged by the assessee in appeal whether in the application for refund of the duty paid the assessee is entitled to question the order of the Assistant Collector as erroneous? The hon ble apex Court replied to the said question as follows: 10. Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. It was submitted that the wording of Section 27, particularly, the provisions regarding filing of a claim for refund within the period of 1 year or 6 months also showed that a claim for refund could be made even though no Appeal had been filed against the Assessment Order. It was submitted that if a claim for refund could only be made after an Appeal was filed by the party, then the provisions regarding filing of a claim within 1 year or 6 months would become redundant as the Appeal proceedings would never be over within that period. It was submitted that in the claim for refund the party could take up the contention that the Order of Assessment was not correct and could claim refund on that basis even without filing an Appeal. 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) s case (supra). Once an order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue is nothing but admitting an appeal which Asstt. Commissioner. Refund is not empowered under the statute so such order is void ab aritio as passed without any authority of law. In case of Flock India reported as 2000 (4) RLT 131 (SC). Honarable Supreme Court has held that the assessment made on the price-list cannot be challenged by way of filing the refund application and the ratio of the aforesaid case is equally applicable with full force in the present case also. The order of assessment has become final as it was not challenged and order of refund passed by Deputy Commissioner, refund is without authority of law so it is void. Since the order in appeal before me is against the rejection of refund claim by Deputy Commissioner and not against the order of assessment made by the proper officer so appeal is hereby rejected. 10.4 While rejecting the appeal filed by the appellant the lower appellate authority has very correctly and rightly pointed out that the order passed by the adjudicating authority was voidab initio and it was passed without any authority of law inasmuch as the lower adjudicating authority could not review his order of assessment. In other words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not merit any interference whatsoever. 12. Following difference of opinion has arisen between the Members. Therefore, the matter be placed before the Hon ble President/HOD for appointing a Third Member to decide the issue. DIFFERENCE OF OPINON Whether in the facts and circumstances of the case, the appellant are entitled to refund claim without challenging the assessment of Bill of Entry relying on the decision of G.S. Metalica (supra) and Bansal Alloys Metals Ltd. (supra) as held by Member (Judicial) OR Whether in the facts and circumstances of the case, refund claim is not maintainable without challenging the assessment of Bill of Entry relying on the decision of Priya Blue Industries (supra) and Flock (India) Pvt. Ltd. (supra) as held by Member (Technical). (Pronounced in Court on 15/12/2011) In continuation of M/500/2011/CSTB/C-I 29/11/11 15/12/11 Final order No. A/1349/14/CSTB/C-I DIFFERENCE OF OPINION Appeal No. C/408/03 Date of Hearing: 28.07.2014 Date of Decision: 07.08.2014 Per: P K Jain: The point of difference of opinion that has been referred to me is as under:- Whether in the facts and circumstances of the case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was an exemption notification covering the said medicines which was neither brought to the notice of the assessing officer nor claimed by the appellant and the assessing officer assessed the duty without extending the benefit of the said exemption notification. The appellant did not challenge the assessment order nor applied for any reassessment and filed the refund claim without challenging the assessment order. Issue is whether refund claim can be considered under these circumstances. I have gone through the order of the Hon ble Bombay High Court in the case of Hero Cycles (supra). In find that in the said case, the Hon ble Bombay High Court has invoked the extraordinary writ jurisdiction and in the interest of justice the High Court permitted the refund claim. It was also noted by the Hon ble High Court that the said goods were being regularly imported by the importer who was getting the benefit of the exemption notification earlier as also after the said clearance and in view of these circumstances, the Hon ble Bombay High Court exercised the extraordinary jurisdiction and observed as under:- 8. In the instant case, the Petitioners admittedly, based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid case, the Bill of Entry was assessed based upon the documents produced and the importer paid the duty based upon the documents, and the Bill of Entry so assessed. However, before allowing physical clearance, when the goods were examined by the Customs authorities it was found that the goods are short ie. there was short landing of goods. This fact was observed even before the clearance of the goods i.e. during the assessment proceedings itself and it is in these circumstances that the Hon ble High Court took the view that the decision in the case of Flock (India) Pvt. Ltd. 9supra) and Priya Blue Industries Ltd. (supra) will not be applicable. In my view, since the goods were not cleared and the short landing of goods were observed during the examination and before the clearance of the goods, refund claim has arisen consequent to the assessment of the Bill of Entry itself and there was no need for challenging the assessment and therefore the facts of that case cannot be made applicable in the present case. Another case law quoted which is in the case of G.S. metalica (supra). The said judgment was passed by the Single Member of this Tribunal. In that case, the goods were assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bennet Coleman Co. Ltd. (supra). In the said case, there was introduction of additional Duty with effect from 1.3.2006 and during the initial period, there was some confusion regarding applicability of SAD on certain items and the appellant paid the additional duty but immediately (on 10.4.2006) applied for the refund of the same and in those circumstances this tribunal distinguished the case from that of Priya Blue Industries Ltd. (supra). I also note that the Larger Bench of this Tribunal in the case of Eurotex Industries Exports Ltd. has taken a view that the refund claim is not maintainable unless the assessment order is challenged and modified. Similar view has been taken by this tribunal in the case of Industrial House. In view of the decision of the Hon ble Supreme Court in the case of Priya Blue Industries Ltd (supra), Flock (India) Pvt. Ltd (supra), as also the Larger Bench decision of this Tribunal in the case of Eurotex Industries Exports Ltd. (supra) I am of the considered view that the provisions of Sec. 154 of the Customs Act cannot be invoked in the present situation where the assessment was made without extending the benefit of exemption notification and sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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