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TMI Blog2015 (2) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... admittedly paid in cash against bill of entry No. 94335 dated 13/4/2010. Thus, there was a mistake occurred on the part of appellant that instead of both the aforesaid amount, they mistakenly mentioned only amount of ₹ 5,39,837.20 and ₹ 14,06,203.88 was left to be mentioned in the refund application. Consequently, it was skipped by the Asst. Commissioner also that against the total SAD payment of ₹ 19,46,041.08 towards total quantity of 2023.70 MT only SAD of ₹ 5,39,836.20 was sanctioned. In this fact I agree that the appellant, is, in principle, entitled for the refund of left over amount of ₹ 14,06,203,88 also but the same can be decided only after rectification of the mistake in the refund. I also agree that there is apparent mistake in refund and same can be rectified under Section 154 of Customs Act, 1962. Mistake occurred in the present case by which the appellant suffered non sanction of refund of SAD of ₹ 14,06,203.88 can be rectified under Section 154 of Customs Act, 1962. Therefore, the matter limited to refund of amount of ₹ 14,06,203.88 is remanded to adjudicating authority with liberty to the appellant to make an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DEPB script and therefore the refund of the same is not admissible. He submits that this issue is nowhere appearing either in the original order nor in the appeal of the appellant filed before the Commissioner (Appeals) only prayed that the refund was filed for the total quantity of the goods imported and sold, whereas in the application only part of the SAD was mentioned and part amount of ₹ 14,06,203.88 which was paid in cash through separate TR 6 Challan could not be mentioned through oversight, therefore their prayer before the Commissioner (Appeals) was that such mistake may be allowed to be corrected under section 154 of Customs Act, 1962 and subsequently refund of ₹ 14,06,203.88 may be allowed. He submits that error is apparent on record as though the total quantity of bills of entry was shown but oversightly total SAD towards such quantity was not mentioned in the refund application filed under notification no. 102/2007-Cus, therefore this is an error which is permissible to be corrected under Section 154 of Customs Act, 1962. He submits that since remand power of the Commissioner (Appeals) has been taken away in terms of Section 128 A of Customs Act, 1962. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a different issue of DEPB, which was never into existence. From the submission, it is clear that the amount of ₹ 14,06,203.88 SAD claimed as a refund by the appellant was admittedly paid in cash against bill of entry No. 94335 dated 13/4/2010. As regard the submission of the appellant regarding rectification of mistake under section 154 of Customs Act, 1962. I have observed that the appellant though mentioned refund amount of ₹ 5,39,807.20 against bill of entry 943355 dated 13/4/2010 towards the total import quantity of 2032.70 MTs (1489.00 MT and 543.70 MT) however, the total duty of SAD against the said quantity was paid as under:- 1489.00 MT - 14,06,203.88 543.70 MT - 5,39,837.20 Thus, there was a mistake occurred on the part of appellant that instead of both the aforesaid amount, they mistakenly mentioned only amount of ₹ 5,39,837.20 and ₹ 14,06,203.88 was left to be mentioned in the refund application. Consequently, it was skipped by the Asst. Commissioner also that against the total SAD payment of ₹ 19,46,041.08 towards total quantity of 2023.70 MT only SAD of ₹ 5,39,836.20 was sanctioned. In this fact I agree that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The issue relates to refund of ₹ 54,861/- paid in excess on account of freight. After perusal of the order passed by the Commissioner (Appeals) and the adjudicating authority it becomes clear that the appellant has filed the Bill of Entry No. 246189 dated 24-2-2005 on the basis of FOB value declared by him instead of C F value. Thus, declaration of C F value has resulted in addition of freight twice in the assessable value. The appellant has claimed refund of duty paid on excess freight. However, the lower authorities appeared to have rejected the claim of the appellant inter alia following the decision of the Hon'ble Apex Court in the cases of Flock India - 2000 (120) ELT 285 (S.C. and Priya Blue Industries - 2004 (172) ELT 145 (S.C.). Though they have admitted in the order that the excess payment has resulted due to clerical error for which the appellant should have filed an application under Section 154 of the Customs Act, 1962. 154. Correction, 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 accid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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