TaxTMI 
TaxTMI 
2006 (7) TMI 363
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....he "said goods") valued at Swedish Kroner 765960.00 FOB and filed in the EDI system of the Customs Department, a Bill of Entry Declaration form containing the necessary particulars including the invoice value is Swedish Kroner 765960.00 FOB. On receipt of the Check list, the same was signed by the appellant's representative and resubmitted to the Customs EDI system. Thereafter, the Bill of Entry as generated by the EDI system and bearing No. 1545926, dated 26-3-2002 was scrutinised by the Assessing Group 5A of the Customs Department and assessed for payment of duty and clearance of the goods. Accordingly, duty of Rs. 1,13,28,477.00 (as assessed) with interest of Rs. 7,449.00 (totalling Rs. 1,13,35,926.00) was paid vide TR6 No. 99034715 dated 21-3-2002, the said goods were allowed to be given out of Custom charge after examination. 1.3 After clearance of the said goods, from the Customs control, they were received in the appellant's factory at Jamshedpur and or atound 27-3-2002 and stored. The cost of the materials including the total duty paid was entered into Stores-in-transit pending removal for use in the plant. 1.4 Appellants employ a fully computerised Enterpri....
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....ce of duty, to any other person and also the Certificate from the Central Excise authorities, regarding non-availment of Modvat benefit and requiring submission of reply thereto. The appellant drew attention to the fact that, they had already submitted an attested copy of the "Non-availment of Modvat Credit" certificate to the Appraising Group, along with the Refund claim. Nevertheless, another copy of the same was sent and they intimated the Assistant Commissioner that the original thereof would be produced during the personal hearing. As regards the incidence of duty the appellant explained that the goods imported were "Capital" in nature and were not and could not be taken into their stock. As the duty was wrongly paid, as aforesaid on 7-11-2002 the appellant's representative appeared before the Assistant Commissioner and explained the issue of the passing of incidence of duty with documents. It was shown that the incidence of duty has not been passed on to any other person, as the goods had not been taken into the cost accounts. The appellant followed this up by its letter dated 8-11-2002 to the Assistant Commissioner, wherein the appellant explained in details its accounting p....
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....n of assessable value in the Bill of Entry. The brief facts of the case are that the appellant imported goods, viz. 80 nos. Rolls which T/c Rods for the purpose of captive use in their Plant. The appellant submitted that though the invoice value was indicated in Swedish Kroner, inadvertently, the same had been printed/computed in EDI in 'Swiss Franc', which resulted in erroneous assessable value and consequential excess payment of duty by them. However, the refund claim of the appellant was rejected by the lower authority on the ground that the assessment on the relevant Bill of Entry had not been appealed against and accordingly, the refund claim would not be admissible principle of unjust enrichment. Being aggrieved by the impugned order, the appellant has come up in appeal. (ii) Admittedly, in the present case, there was a slip/clerical error, in as much as the exchange value had been wrongly computed, on account of conversion in wrong currency. In terms of Section 154 of the Customs Act, 1962, such clerical error/accidental slip or omission can be corrected at any time. However, in the event, the correction of omission/accidental slip has implic....
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....held that the r Commissioner (Appeals) had no jurisdiction to upset the original assessment which was not challenged under a regular appeal, while considering an application for refund. The instruction issued by C.B.E.C. dated 11-9-2001 (Manual of Instructions/Chapter 3/Para 17) also laid down the requirement of appeal against an adverse assessment order. Since the appellant did not file any appeal against the assessment order, pursuant to which duty was paid by them and neither duty was paid under protest, the refund claim is not legally admissible. (iv) In the present case, the appellant imported the impugned goods which are in the nature of capital goods and used those captively in the manufacture of final products. Presuming that the refund of duty is admissible, such refund in case of captive utilisation of goods, would be barred by the principle of unjust enrichment. Hon'ble Apex Court in the case of M/s. Solar Pesticides Pvt. Ltd. [2000 (116) E.L.T. 401 (S.C.)] inter alia held that passing on of duty incidence indirectly by way of loading on to price of finished goods, would attract the bar of unjust enrichment under Section 27 of Customs Act, 1962....
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....oth on the question of merit as well as principle of unjust enrichment, the, claim of the appellant is not legally sustainable/maintainable. 1.9 Being aggrieved the present appeal has been filed. 2.1 The Customs Manual of Instructions has been issued on 11th September, 2001 by the Central Board of Excise & Customs (in short "the Board"). In Chapter 15 of the said Manual it has been clarified that in cases where excess payment of duty has been made due to incorrect assessment by the Customs authorities, the importer must file a claim under Section 27 of the Customs Act for refund of the excess amounts. The relevant portion of the Manual [Para 1 of Ch. 15] is produced herein below:- "On import and export of goods, at times, it is found that the duty had been paid in excess of what was actually leviable on the goods. Such excess payment may be due to lack of information on the part of the importer/exporter or non-submission of documents required for claim of lower value or rate of duty. Sometimes, such excess payment of duty may be done to shortage/short landing, pilferage of goods or even incorrect assessment of duty by Customs. In such cases, refund of exces....
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....ty and consequently a duty, to correct the said "admitted" "clerical error/accidental slip" as soon as the same was brought to their notice irrespective of the status of an order of assessment on a Bill of Entry. On making of such correction under Section 154 of the Act, consequential return of amount of duty of customs would be available to an importer and would require to be made is the mandate of law as laid down. 2.3  (a) The Commissioner (Appeals) is to be found to have erred in holding that the refund claim of the appellant did not merit any consideration in the light of the decisions referred by him in para 3 of the said order. For the reasons arrived herein above, the said decisions, as well as the decision of the Supreme Court in Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), [2004 (172) E.L.T. 145 (S.C.)], have or can have no manner of applicability to the present case of amendments of a Clerical Mistake in exercise of statutory provisions of Section 154 of Customs Act, 1962. Reliance upon the Constitution Bench decision of the Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India, 1997 (89) E.L.T. 247 (S.C.) and Para 70....
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....n their profit and loss account therefore there is no question of passing on incidence to duty to any other person. In this regard I find that the assessee had submitted balance sheet for the year 2001-02 and duty was paid during this year as on 21-03-02. It is not understood why they have not taken the amount in their books of account under profit and loss account as they could have taken the correct amount in their expenditure account but they did not do so and it cannot be ruled out if the claim in question is allowed, the total duty paid under the above Bill of Entry would be the part of the costing of the finished goods in the next financial year. Hence, it appears that unless the correct amount is shown in the profit and loss account no refund can be given as possibility of passing on in incidence of duty under claim to their buyers by charging in their profit and loss account in the financial year 2002-03 cannot be ruled out. The goods are lying with the claimant and ultimately the cost including incidence of duty would be part of the expenditure incurred on the finished goods. They have also failed to establish by documentary evidence whether the incidence of duty under cla....