2008 (1) TMI 108

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..... nied
Shri K.K. Agarwal, Member (T) [Order]. - 1. The brief facts of the case are that the appellants filed a bill of entry dated 26-7-2006 for clearance of silk fabrics and apart from applicable Customs duty paid special additional duty at the rate of 4% and cleared the goods accordingly. Later on they realized that the special additional duty at the rate of 4% was exempted under Notification 20/06 dated 1-3-2006. They accordingly filed a refund claim of Rs.1,68,063/- being the excess amount paid. The claim was rejected by the original authority on the ground that once the assessment order has not been challenged a refund claim cannot be filed in view of the Apex Court decision in the case of Priya Blue - 2004 (172) E.L.T. 145. On app .....

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..... sessment of bill of entry instead of taking a shortcut of filing a refund. The assessment of bills of entry being unchallenged has attained finality and the assessment cannot be reopened by adopting the route of refund claim. In view of this, it was submitted that the Commissioner (Appeals) order is incorrect and needs to be set aside. 3. The learned Advocate for the appellants relied upon the decision of the Kerala High Court in the case of UOI v. Aluminium Inds. Ltd. - 1996 (83) E.L.T. 41 where goods were allowed to be cleared by the Assessing Officer at lower rate of duty because of ignorance of withdrawal of exemption in view of the fact that in between, the exemption was withdrawn which fact was not informed to the Assessing Officer, .....

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..... account of accidental slip or omission falling within the purview of Section 154 of the Customs Act, 1962. In view of this, it was submitted that non- claim in exemption was a clerical error which could have been rectified under Section 154 and therefore refund cannot be denied. 4. I have considered the submissions. I find that the Tribunal has in the case of MMTC v. CC cited supra wherein an identical issue was involved has held that non-claim for exemption is not an arithmetic or clerical error covered by Section 154 of the Customs Act and refund cannot be claimed unless the assessment is challenged. The Larger Bench of the Tribunal has in the case of Eurotex Indus. & Exports Ltd. - 2007 (216) E.L.T. 137 also held, that unless an assess .....

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