2010 (8) TMI 244

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....d invoices in the month of September, 2007 involving total duty of Rs. 11,56,667/-. However, due to totalling mistake of the various invoices, the appellants erroneously debited the amount of Rs. 12,00,124/- which resulted in excess payment of duty of Rs. 41,457/-. On realising the totalling mistake committed by the appellants in the assessable value as well as in the Central Excise duty, they filed a refund claim. The refund claim, following the decisions of Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) and Commissioner of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.), was rejected by the lower authorities holding that without challenging the assessment,....

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....t view. Moreover, when the appellant realised that they committed an error, they have not informed to the department instead they filed a refund claim, which is not maintainable. 5.Heard both sides. 6. On careful examination of this case, I find that there is no dispute that the appellants have inadvertently paid excess amount of Rs. 41,457/- while totalling the duty liability payable for the month of September, 2007. It is also clear that the consignment-wise assessment, based on respective invoices, were correctly done by the appellants. Duty was paid on the erroneous assessable value arrived at after wrong totalling and the said error was made by the appellants in the ER-1 return also. On reconciliation of the accounts, the error....

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....se Officer. Secondly the said decision or the order has to be communicated to the assessee. In this case, neither any decision nor any order has been passed by the Central Excise officer which was communicated to the appellants. While granting stay to the appellants, this Tribunal has also observed that an appeal under Section 35 of the Central Excise Act should be preferred to the Commissioner (Appeals) against the order passed or decision taken by the Central Excise Officer or sub-ordinate to him. It is difficult to envisage that the said provision of law provides for an appeal against the self assessment. In the case of Gimatex Industries Pvt. Ltd. (supra) this Tribunal has held that the proposition that "assessment" includes "self asses....