2006 (2) TMI 396

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....ill of Entry for its clearance. They also filed invoices of Canon Singapore PTE Ltd., value of which was in dollars. At the time of clearance, through over sight exchange rate was declared as Euro/Dollars. This error was manifested and Bill of Entry was assessed and duty was paid which lead to excess payment of duty Rs. 6,66,468/-. On realising this error of excess payment of duty the appellants filed refund claim with the lower authorities. The adjudicating authority rejected the refund claim on the ground that the appellants have not challenged the assessment of the Bill of Entry, and hence, filing of refund claim would not arise. On appeal the Commissioner (Appeals) also held the same and dismissed the appeal of the appellant. Hence this....

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....ppealing 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 - 2002 (143) E.L.T. 482 (S.C.), in which the Hon'ble Supreme Court permitted consi....

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.... be considered as a result of correction of clerical error under Section 154 independent of Section 27(1) and more particularly without taking into account the time limits prescribed therein. The learned SDR has cited the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries (supra) in this regard. He has in particular drawn our attention to paragraph 99 of the said decision. We find that Mafatlal (supra) has not dealt with a case of refund arising out of correction made under Section 154. It deals with cases of refund arising out of misinterpreting or misapplying excise and customs laws in Para 99(i) and refund arising from unconstitutional levy in Para 99(ii) and states that in case of the former the refunds have to be ....