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TMI Blog2010 (7) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(G)Cus. dt. 18/9/2009 Order-in-Appeal No. 15/2009(G)Cus. dt. 18/9/2009 Order-in-Appeal No. 16/2009(G)Cus. dt. 18/9/2009 Since the issue in all these appeals are similar, they are being disposed by a common order. 2. The relevant facts that arise for consideration in all these appeals are that the appellants herein filed shipping bills for export of Iron Ore fines. As per oral directions of the authorities, the appellants herein paid export duty basing the calculation by adopting FOB value as assessable value. Shipping bills were assessed by the proper officer endorsing the same as 'assessable value is accepted subject to payment of differential duty, if any, by exporter based on price adjustment'. Later on, the appellants reali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the FOB value. It is the submission that the decision of the Hon'ble Supreme Court in the case of Flock India Pvt. Ltd. and in Priya Blue Industries specifically deal with such issue. It is the submission that in the absence of any endorsement on the shipping bill/TR6 challan to the effect that the duty payment was under protest, for the purpose of treating the value as cum-duty value, the order of assessment on the shipping bill has become final. It is the submission that the impugned orders holding that the method of assessment can be treated as an omission and can be corrected as contemplated under Section 154 of the Customs Act, 1962 and it can be corrected without time limit is erroneous. 4. Ld. Counsel appearing on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents considering the FOB price as cum-duty price is in accordance with law and the original authority should have allowed the refund. Vide the impugned order, the Commissioner noted the legal position in this regard and observed that the error could be corrected invoking provisions of Section 154 of the Act and by reassessing the shipping bills under Section 17 (4) of the Act. 6.1 We find that the Apex Court observed as follows in Flock India Pvt. Ltd. case (supra): "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 exercise the statutory right of filing an appeal, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls of Entry, it was the duty of the proper officer of customs to assess the duty due. Therefore, if the assessing officer committed a mistake, the same should be corrected and if any excess amount was collected pursuant to wrong assessment, that amount should be refunded. There was no need for the importer to challenge the assessment to obtain the refund of the excess amount paid." In VST Industries Ltd. vs. Commissioner of Customs, Mumbai [2007 (207) E.L.T. 513 (Tri.-Mumbai)] case, the facts were that the appellant had paid excess duty by adopting the FOB value as transaction value instead of C and F value. The claim for refund of duty paid on excess freight was denied by the authorities following the decision of the Apex Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants were entitled to claim reassessment in terms of their refund application. The appeal was allowed by remand to the original authority. The Tribunal had followed the decisions in the case of Karnataka Power Corporation Ltd. vs. Commissioner [2002 (143) E.L.T. 482 (S.C.)] and Jindal Vijayanagar Steels Ltd. vs. Commissioner [2006 (206) E.L.T. 529 (Tribunal)]. We also note that in this case excess amount of duty was paid owing to a mistake in the calculation of the duty. The Tribunal in the case of Commissioner of Customs, New Delhi vs. Hero Honda Motors Ltd. [2008 (220) E.L.T. 482 (Tri.-Del.)] allowed the appeal filed by the assessee with the following findings: "11. Section 154 of the Customs Act reads as under:- "Section 154. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner [2006 (202) E.L.T. 61 (Tri.)] cited by the respondents, the Tribunal in a similar case of erroneous assessment and collection of higher amount of duty, directed the assessing officer to reassess the Bill of Entry under Section 17 (4) of the Act after allowing the assessee to amend the Bill of Entry under Section 149 of the Act. 8. We find that the impugned order is consistent with a plethora of the judicial authorities, a few of which are discussed above. In the circumstances, we find no merit in the appeal filed by the Revenue and reject the same." 6. It can be seen from the above reproduced paragraphs that in an identical issue, we have taken a view and rejected the appeal filed by the Revenue in that case. We are convinced that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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