9911796707
TMI Blog2015 (2) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has imported "Hot Rolled Plates" on payment of custom duty. The appellant filed refund claim in respect of 4% SAD amounting to Rs. 36,85,608/- in terms of notification No. 102/2007-Cus dated 14/9/2007. The adjudicating authority vide his order No. 71/MJM/AC/REFUND (EXP)/11-12 dated 24/5/2011 sanctioned refund claim of Rs. 36,85,608/-. Against the said order the appellant filed appeal before the Commissioner (Appeals) on the ground that refund claim of Rs. 14,06,203/- against bill of entry no. 943355 dated 13/4/2010 was ignored. During the appeal proceedings the appellant filed certain documents alongwith revised Annexure-'A' dated 4/2/2010 (calculation were shown for SAD revised in respect of bill of entry 94355), wherein revised a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund of Rs. 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 is the Commissioner (Appeals) who is supposed to exercise the power not as the Commissioner (Appeals) only but also the adjudicating authority if there is deficiency in the order of the adjudicating authority. In support of his argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,203.88 of SAD does not arises. 4. I have carefully considered the submissions made by both the sides. 5. The Commissioner (Appeals) has rejected the appeal of the appellant only to the ground that the amount of Rs. 14,06,203.88 was not paid in cash but deposited through DEPB script. In this regard I have carefully gone through the records and found that the issue of DEPB was neither existed nor even in dispute right form payment of custom duty, claiming of refund of SAD, in the adjudication order and also in appeal of the appellant, made before the Commissioner (Appeals). Therefore the Commissioner (Appeals) has gravely erred in deciding the appeal altogether a different issue of DEPB, which was never into existence. From the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of the Hon'ble Supreme Court order dated 13/3/2001 is reproduced below:- CC(I) Indian Farmers Fertilizer Co-op Ltd [Order]- P.C. : In this appeal, the appellant has challenged order dated 28-6-2002 passed by the Customs, Excise and Service Tax Appellate Tribunal. It appears that the imported goods were cleared by the appellant on payment of duty at the rate of 50% instead of paying 5%. The appellant field an application for refund of the excess duty which was rejected. The matter was carried up to the Supreme Court. The Supreme Court, by order dated 13-3-2001 held as under: "Learned counsel for the appellants submits that the real issue here is that, apparently as a result of a clerical error, countervailing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after taking into consideration the provision of Section 154 of the Customs Act, 1952, particularly when the provisions of this section have not been considered in the aforementioned decisions of the Hon'ble Supreme Court. From the judgment of VST Industries Ltd. Vs CC, Mumbai (supra), it can be seen that the mistake such as appearing in the present case is rectifiable under Section 154 of Customs Act, 1962. 5.1 In view of facts of the present case and various judgments discussed (supra), I am of the considered view that the mistake occurred in the present case by which the appellant suffered non sanction of refund of SAD of Rs. 14,06,203.88 can be rectified under Section 154 of Customs Act, 1962. Therefore, the matter limited to ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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