9911796707
TMI Blog2004 (10) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... that the provisions of Section 154 were not complied with. The judgment in the case of Priya Blue Industries Ltd. [ 2004 (9) TMI 105 - SUPREME COURT] is also not applicable as Section 154 of the Customs Act, independent of Appeal, provides for correction of clerical or arithmetical mistakes in any decision or order by an officer of Customs. The Bombay High Court has held in Keshari Steels, [ 1997 (12) TMI 643 - SC ORDER] , that once the clerical or arithmetic mistake is corrected, the assessee is entitled to have refund of the said amount which is paid due to an arithmetical mistake . The SLP preferred by Revenue has also been dismissed by the Supreme Court. Thus the refunds of excess amount of duty is admissible. Applicability of bar of u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeals) also under the impugned order has rejected their appeals on the ground that the order of assessment made by proper officer stands as no correction as required by Section 154 of the Customs Act has been made nor any Appeal was filed. The learned Advocate, further, submitted that the appellants have shown the excess customs duty paid by them as sundry recoverable in their books of accounts; that thus the said excess duty amount had not been debited to the Profit and Loss Account and had also not been included in the costing of the finished products; that as such burden of excess duty has not been passed on to the customers. In this regard, he referred to the Certificate dated 7-3-2003 given by M/s. Jayesh Desai Co., Chart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court on merit as reported in 2000 (121) E.L.T. A139. 3. Countering the arguments, Shri S.M. Tata, learned Senior Departmental Representative, submitted that the Appellants have not challenged the assessment in Appeal and thus they can not claim the refund of duty; that since the assessment has attained finality, the refund claim is not maintainable. He relied upon the decision in the case of Priya Blue Industries Ltd. v. CC (P), 2004 (172) E.L.T. 145 (S.C.) = 2004 (96) ECC 217 S.C. wherein it has been held that once an order of assessment is passed the duty would be payable as per that order and unless that order of assessment has been reversed and/or nullified in an Appeal, that order stands. He also contended that the bar of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said amount which is paid due to an arithmetical mistake . The SLP preferred by Revenue has also been dismissed by the Supreme Court. Thus the refunds of excess amount of duty is admissible. 5. Coming to the applicability of bar of unjust enrichment, we find that the Appellants have contended that the excess duty paid by them is appearing as sundry recoverable in their books of accounts which has also been certified by the Chartered Accountants. These submissions of the Appellants have not been considered by the Adjudicating Authority in the Order-in-Appeal at all. We, therefore, set aside the impugned order and remand both the appeals to the jurisdictional Adjudicating Authority for examining as to whether bar of unjust enrichment is app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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