TaxTMI 
TaxTMI 
2010 (5) TMI 518
X X X X Extracts X X X X
X X X X Extracts X X X X
....ess export duty paid by it. 2. The appeal raises the following grounds : (i) the respondents had paid export duty on the FOB value of the consignments without registering any protest. Therefore they cannot claim that they were aggrieved by the assessments treating the FOB value as transaction value. (ii) In the case of Collector of Central Excise, Kanpur v. Flock India Pvt. Ltd. [2000 (120) E.L.T. 285 (S.C.)] the Apex Court held that if the order which is appealable under the Act is not challenged, then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund. (iii) The appellant Revenue relies on the decision of the Tribunal in the case of Super Cassettes Industries....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ead to the conclusion that without the Order of Assessment having been modified in appeal or reviewed a claim for refund can be maintained." (v) In view of the fact that there was no endorsement on the shipping bills/TR6 challan to the effect that the duty payment was 'under protest' for the purpose of treating the value as cum-duty value, the order of assessment had become final. Since the above assessment was not challenged by the assessee, the order of the Commissioner (Appeals) modifying the assessment, by treating the value as cum-duty value was not correct, in view of the ratio of Hon'ble Apex Court's judgment in Priya Blue case. In this connection, the assessee's contention that filing the refund claim itself was a challenge ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. [2000 (120) E.L.T. 285 (S.C.)] and decision of the Tribunal in the case of Super Cassettes Industries Ltd. v. Commissioner of Customs, Kolkatta [2003 (162) E.L.T. 1148 (Tri. -Del)]. He also observed that re-assessment of the shipping bill under Section 17(4) of the Customs Act, 1962 (the Act) ordered on the shipping bill was for the limited purpose of revising liability following the ascertainment of exact Fe content and moisture content in the Ore. He also observed that Circular cited by the respondents did not apply to the assessments already finalized. 5. We find that the impugned order relied on the following case laws to allow the appeal filed before him : (i) IP Rings Ltd v. CE (AIR), Chennai - 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Act. 6.1 We find that the Apex Court observed as follows in Flock India Pvt. Ltd. case (supra) : "Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order." The above judgment was concerned with the provisions relating to refund under the Central Excise Act. The ratio applies to refund claims un....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d of the excess amount paid." In VST Industries Ltd. v. Commissioner of Customs, Mumbai [2007 (207) E.L.T. 513 (Tri. - Mumbai) = 2007 (5) S.T.R. 59 (Tribunal)] case, the facts were that the appellant had paid excess duty by adopting the FOB value as transaction value instead of C & F value. The claim for refund of duty paid on excess freight was denied by the authorities following the decision of the Apex Court in the case of Collector v. Flock India Pvt. Ltd. [2000 (120) E.L.T. 285 (S.C.)] and Priya Blue Industries Ltd. v. Commissioner [2004 (172) E.L.T. 145 (S.C.)]. The Tribunal observed as follows while allowing the appeal filed by the assessee : "4. A bare perusal of the above provisions makes it clear that no obligation has ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndal Vijayanagar Steels Ltd. v. Commissioner [2006 (206) E.L.T. 529 (Tribunal) = 2008 (11) S.T.R.108 (Tribunal)]. We also note that in this case excess amount of duty was paid owing to a mistake in the calculation of the duty. The Tribunal in the case of Commissioner of Customs, New Delhi v. Hero Honda Motors Ltd. [2008 (227) E.L.T. 482 (Tri. - Del.)] allowed the appeal filed by the assessee with the following findings : "11.  Section 154 of the Customs Act reads as under :- "Section 154. Correction of clerical errors, etc. - Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act. or errors arising therein from any accidental slip or omission....