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TMI Blog2016 (9) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant. Sh. S. Bhattacharyya argued that due to calculation error in the bill of entry with respect to Retail sale price (RSP/MRP/ excess CVD got paid. That as per certificate of manual bill of entry No. 26/0091 dt 19/1/2011 RSP was declared much higher at against actual RSP at which the goods were sold. That by a letter dt 21/7/2011, within Six months of assessments appellant addressed the issue to Assistant Commissioner incharge of appellant s assessment seeking erroneous calculation of CVD. That as per the endorsement of AC on the said letter their application was sent to Refund Section. That AC Refund Section Vide letter dt 26/29-8-2011 asked the appellant to furnish a copy of reassed bill of entry and were also asked to prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for reassessment was considered by the department as a refund application. 3. Sh. K. C. Jena ADC (AR) appearing on behalf of the Revenue argued that self assessment done was not challenged by the appellant by filing of an appeal and strongly argued that no refund claim has been filed by the appellant. Learned AR made the bench go through Para 5 & 6 of the OIA dt 25/11/2013 and argued that appeal was filed after the statutory time period and was correctly dismissed as time barred by the first appellate authority. 4. Heard both sides & perused the case records. It is observed from Para 3 of the OIA dt 25/11/2013 passed by the first appellant authority that one of the point for deliberation raised by the appellant was that their case was onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake correction in any decision or order arising therein from any accidental slip or omission, as could be seen that the excess duty has been paid due to incorrect invoices raised by the overseas supplier who has also submitted apology in this regard. The Appellant also filed the Bills of Entry on the basis of the value mentioned in the invoices without comparing the same with the contracted price. Therefore the excess duty was paid on account of the accidental slip or omission and is covered under section 154 of the Customs Act 1962. The observation made by the Adjudicating Authority in this regard that the case is not covered under section 154 is incorrect." "6. Revenue is aggrieved with the said order, and hence, the present appeal. Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of initial assessment and other conditions of Section 27 are satisfied, the appellant will be eligible for refund. The matter is remitted to the adjudicating authority for deciding the refund claim on merit considering the directions as above." 4.3. In the case of Secure Meters Ltd Vs CC New Delhi (Supra) also following view was taken by CESTAT Delhi in Para 6 :- "6. There is no dispute about the fact that the invoice of the imported goods was in terms of EURO, but in the bill of entry, the currency was mentioned as Great Britain Pound and value of the goods was converted into Indian currency-by applying Great Britain Pound-rupee exchange rate instead of EURO-rupee exchange rate. The point of dispute is as to whether before filing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the refund claim on this ground is not sustainable and is liable to be set aside." 4.4. In all the cases at Para 4.1, 4.2 & 4.3 above Apex Court s decision in the case of Priya Blue Industries Ltd. Vs Commissioner [2004 (172) ELT (S.C)] was distinguished. 5. In the case of present proceedings also no appealable assessment order was issued. Secondly appellant s request for reassessment / rectification of calculation mistake, as per Sec 154 of this Customs Act 1962, was not addressed at all. Under the existing factual matrix it is held that non filing or late filing of appeal against the original assessment on the bill of entry is not relevant and appellant can challenge the assessment by way of a refund application. 6. It is observed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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