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TMI Blog2005 (8) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... n not be ignored which confers a right on a claimant. It has not made filing refund claim conditional upon filing an appeal against the assessment order. The learned SDR has cited the decision of the Hon'ble Supreme Court in the case of Priya Blue [ 2004 (9) TMI 105 - SUPREME COURT] , We note that this is a decision by a Bench of two Judges, which has not considered the decision of the three Judges Bench rendered in the case of Karnataka Power Corporation Ltd. v. CC [ 2002 (4) TMI 79 - SUPREME COURT] , in which the Hon'ble Supreme Court permitted consideration of a refund claim though no appeal was filed against the assessment made on the Bill of Entry. We are bound to follow the ratio of the decision of the Larger Bench of the Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruled that the doctrine of unjust enrichment is a just and salutary doctrine and that all refund claims (except those arising as a result of a levy being declared unconstitutional) have to be dealt in accordance with Section 27(2) in view of provisions contained in Section 27(3). Accordingly, we hold that the appellants are entitled to refund arising out of correction of clerical mistake u/s 154 of the Customs Act, 1962 subject to the question of unjust enrichment being examined by the original authority. As such, we set aside the impugned orders and allow the appeal by remand to the original authority in the above terms. The original authority shall consider the refund claim and allow the appellants reasonable opportunity of hearing to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 is not admissible. His main arguments are that :- (i) As held by the Hon ble Supreme Court in Mafatlal Industries v. UOI - 1997 (89) E.L.T. 247 (S.C.), all refunds have to be governed by the provisions of Section 27. (ii) Since the appellants have not filed any appeal against the assessment made on the Bills of Entry, they are not entitled to any refund as held by the Hon ble Supreme Court in Priya Blue Industries Ltd. v. CC (Preventive) - 2004 (172) E.L.T. 145 (S.C.). 3. After hearing both sides and perusal of case records, we find that the excess duty payment has arisen due to wrong typing of the exchange rate as Rs. 43.50 for the US Dollar, where as the correct rate should have been Rs. 24.90 for the Singapore Dollar. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s provides a time limit of one year for imports by Government, imports by individuals for personal use and imports by educational, research, or charitable institutions and hospitals. For others, the time limit is six months. The lower appellate authority has concluded that the refund claim of the appellants is time barred holding that the one year time period is not available to them as they are only a Government of India undertaking, not the Government. He has cited the following decisions to support such a distinction :- 1. H.A.L. v. CC - 1987 (31) E.L.T. 100 2. I.P.C.L. v. CC - 1987 (28) E.L.T. 247 It is not clear why the law makes a distinction between the time available to a Govt. Department and a Govt. Undertaking for filing a refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion raised by the learned SDR that no refund claim can be made without first appealing against the assessment order. We are not convinced of this argument. Section 27(1) itself provides for claim against duty paid in pursuance of an order of assessment. Such a specific legal provision can not be ignored which confers a right on a claimant. It has not made filing refund claim conditional upon filing an appeal against the assessment order. The learned SDR has cited in this context the decision of the Hon ble Supreme Court in the case of Priya Blue (supra). We note that this is a decision by a Bench of two Judges, which has not considered the decision of the three Judges Bench rendered in the case of Karnataka Power Corporation Ltd. v. CC - 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciding a case of refund arising out of an independent provision relating to corrections under Section 154 of the Customs Act, 1962 itself. On the other hand, we find that the learned consultant for the appellants has cited two decisions of the Hon ble High Court of Bombay in the case of TELCO (supra) and Keshari Steels (supra) of which the latter decision has also been confirmed by the Hon ble Supreme Court. Both these decisions permit refunds in similar cases of correction of errors under Section 154 independent of the provisions of Section 27(1). This line of decision has also been followed by the Tribunal in ABB Ltd. (supra). As such, we hold that refunds as a consequence of correction of clerical error under the independent provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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