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TMI Blog2022 (11) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... ip or omission may, at any time, be corrected by the concerned authority - the mention of wrong HSN code 28092010 instead of correct HSN code 28111990 in Bill of entry was an accidental slip and leading to erroneous collection of anti-dumping duty. The point of dispute is as to whether before filing the refund claim of the excess duty paid due to errors / mistakes, the assessment order was required to be challenged. This very issue had been dealt with by the Tribunal in the cases of TATA IRON STEEL CO. LTD. VERSUS COMMISSIONER OF CUSTOMS (PORT), KOLKATA [ 2006 (7) TMI 363 - CESTAT, KOLKATA] and CELCIUS REFRIGERATION PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [ 2007 (3) TMI 446 - CESTAT, NEW DELHI] wherein the Tribunal has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid against the BOE No. 4673216 dated 01.01.2018 and BOE No. 4367944 dated 12.12.2017 vide their letter dated 04.05.2018 on 07.05.2018. The Bill of entry dated 01.01.2018 was assessed to the duty of Rs. 15,45,715/- and Bill of entry dated 12.12.2017 was assessed to the duty of Rs. 15,57,623/- and the duty amount were paid by the Appellant. The Appellant imported the Phosphorus Acid and declared in both the Bills of Entry under CTH 28092010. On post clearance Audit of above said Bills of Entry, it was found that goods imported under CTH 28092010 attract anti dumping duty vide Notification No. 33/2013-CUS (ADD) dated 31.12.2013. Therefore, the differential duty of Rs. 30,48,283 along with interest of Rs. 1,21,465/- was demanded by the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mping duty was collected by the Customs department vide letter dated 12.03.2018. The BOEs do not anywhere specify levy of Anti-dumping duty and the same has attained finality. Therefore, deputy commissioner of Customs in the first place should not have collected the Anti- Dumping duty. Even though collected, the Deputy Commissioner should have refunded, because no Anti dumping duty was leviable on the imported goods i.e. Phosphorus Acid. 2.1 He submits that without there being any assessment order on anti-dumping duty, the customs department does not have to review or sit in appeal which the primary reason stated in the impugned order. In the absence of any Assessment order demanding anti-dumping duty, there is no requirement to chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which attract no anti- dumping duty and hence, in the present case no duty was to be recovered and hence, the same has been erroneously recovered which needs to be refunded to the Appellant. It is also to be seen that due to minor inadvertence the classification of the goods imported was wrongly mentioned. The product imported by the Appellant i.e. Phosphorus Acid and which is wrongly classified i.e Phosphoric Acid are materially different, having different chemical composition and having different usage and purpose which are easily distinguishable. The end usage of both the products are entirely different and both cannot be substitutes for each other and hence, there cannot be any intention of the appellant for wrongly classifying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al course of business imported Phosphorous Acid and inadvertently mentioned HSN code as 28092010 instead of correct HSN code of 28111990. However description of goods was correctly mentioned as Phosphorous Acid by the Appellant on all the import documents and the same was not disputed by the department at the time of import. I find that the appellant in question have imported the goods Phosphorous Acid and therefore no Anti-dumping duty was payable on them. However, appellant inadvertently mentioned the HSN code 28092010 which was related to Phosphoric Acid . This is a clerical error in the bills of entry but not by the officer but by the appellant themselves. In case of processing of bill of entry in customs EDI where the bill of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s very issue had been dealt with by the Tribunal in the cases of Tata Iron Steel Co. Ltd. v. CC (Port), Kolkata (supra) 2006 (202) E.L.T. 719 (Tri. - Kolkata) = 2008 (10) S.T.R. 515 (Tri. Kolkata and Celcius Refrigeration Pvt. Ltd. v. CC, New Delhi (supra), 2007 (213) E.L.T. 364 (Tri. - Del.) wherein the Tribunal has held that mention of wrong currency in the bill of entry as the application of wrong exchange rate is a clerical mistake and when on account of such clerical error a higher amount of duty has been paid the re-assessment is not required before filing of refund claim, as the clerical mistake can be corrected in terms of the provisions of Section 154 of the Customs Act, 1962. 4.2 Moreover, in the present case the payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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