AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2010 (9) TMI 948
X X X X Extracts X X X X
X X X X Extracts X X X X
....acts. 3. The appellants imported coking coal (a raw material) for the manufacture of metallurgical coke. On such imports, the appellants paid import cess and education cess. The above payments were made by the appellants on provisional assessment of their Bills of Entry and the cess was paid under protest. Thereafter, the assessments of Bills of Entry were made final in respect of those provisional assessments. All the appeals arose against the denial of refund claim by the lower authorities. Appeals No. C/759 to 767/09 except Appeals No. 765 and 766/09 relates where after the finalisations of Bills of Entry, the demand of import cess was confirmed. The Appeals No. C/765 and 766/09 relates to the Bills of Entry where the demand was finally assessed 'NIL'. After the final assessment of Bills of Entry, the appellants realised that in the case of import of coking coal, the appellants were not required to pay the import cess and education cess as per the decision of the Hon'ble apex court in the case of CCE & Cus. Bhubaneshwar vs. Tata Iron & Steel Co. Ltd. (TISCO) - 2003 (154) ELT 343 (S.C.) wherein it was held that cess is not leviable on import of coal. Accordingly, the appellant....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of the appellants are covered within the provisions of Section 154 of the Customs Act, 1962. He also submitted that under Section 17 of the Customs Act, 1962, it is the responsibility of the proper officer to assess the Bill of Entry in accordance with law and to recover only appropriate duty. In the present cases, he has failed to discharge his responsibility while assessing the Bills of Entry by omitting not to take cognisance of the decision of the apex court in the case of TISCO (supra). He also submitted that the expression 'omission' has been defined in Black's Law Dictionary to mean 'neglect to perform what the law require'. As per the law dictionary the same means 'neglect or failure to do something what the law requires'. In these cases also, the proper officer failed to do what is required by law. In support of this contention, he relied on the decision of the apex court in the case of Asst. Commissioner of Income Tax vs. Saurashtra Kutch Stock Exchange Ltd. -2008 (230) ELT 385 wherein the apex court observed that an error apparent on record would mean an error which strikes on a mere looking and does not need long drawn out process of reasoning. In other words, it shou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....A103 (S.C.) He also relied on the case of Bansal Alloys & metals Ltd. vs. CC-2009 (240) ELT 483, wherein the Hon'ble Punjab & Haryana High Court, while dealing with the statutory appeal filed by the importer in terms of Section 130 of the Customs Act, 1962 against the order of the CESTAT which rejected the claim for refund on the premise that order of assessment has not been challenged, the Hon'ble High Court applied provisions of Section 149 of the Customs Act, 1962 and held that it was the responsibility of the assessing / proper officer to assess / re-assess the Bill of Entry and correctly determine the duty leviable in accordance with law. Having failed to do so, the proper officer had caused great injustice to the importer and it was open to the importer to file an application for refund under Section 27 of the Act without recourse to challenging the assessment on the Bill of Entry in terms of provisions of Section 149 of the Customs Act, 1962. Finally he relied on the decision of the Hon'ble Delhi High Court in the case of Aman Medical Products Ltd. vs Commissioner of Customs 2010 (250) ELT 30 wherein it was held that while dealing with an appeal under Section 130 of the Cust....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at additional customs duty (cess) under Section 3 of the Customs Tariff Act, 1975 was not leviable on the coal imported. He fairly agreed that there is no dispute in these appeals the said duty (cess) was levied and paid by the appellants. He further submitted that whether the duty was paid by mistake of law or collected illegally the only course open to the appellants is to file a claim for refund under Section 27 of the Act. It is on record that there was no request for modifying, altering or varying the assessment under Section 154 of the Act already made by the appellant before the assessing officer in any of the refund claims. The only issue in question is that when the assessments of duty have not been modified in appeal, whether the refund claims are maintainable or not. As held by the apex court in the case of Priya Blue (supra) without challenging the assessments, refund claim is not maintainable and the lower authorities has rightly rejected the refund claim. He further submitted that in terms of Section 154 of the Customs Act, 1962 the assessing officer may correct any errors arising from any accidental slip or omission in any decision or order passed by it at any time a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....relied on several other decisions. All are considered and dealt in detail. 9. On careful examination of the submissions made by both sides, the core issue in this case is that whether the refund claim filed by the appellants in the facts and circumstances of the cases (without challenging the assessment) are maintainable or not? 10. Before going into the analysis of the submissions made by both the sides, three situations emerges in these cases:- (a) Bills of Entry assessed by the assessing officer without considering the Judgement of Honble apex court in the case of TISCO (supra). (b) Bills of Entry assessed @ NIL duty/cess by the assessing officer after considering the Judgement of Honble apex court in the case of TISCO. (c) Bills of Entry assessed to pay duty/cess by the assessing officer after considering the Judgement of Hon'ble apex court in the case of TISCO. Situation (c) is not before me and the same has been dealt with by this Tribunal in the appellants own case reported in 2009 (247) ELT 606 (Tri-Mumbai). Situation (a) relates with Appeals No. C/759 to C/767/09 except C/765 and C/766 of 2009. Situation (b) relates with Appeals No. C/765 and C/76....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tur ed and despatched from collieries in India, as per Hon'ble supreme Court judgment in case No.2003 (154) ELT 343. However, an amount of Rs.5,28,564/- deposited under protest. 9 C/767/09-Mum 06/05-06 dated 30.01.2006 River-side coking coal with ash content below 12% Import cess @ Rs.4.25% PMT on B/L quantity + 2% Edu. cess thereon equal to Rs.2,21,505/- 12. From the examination of the above, the Appeals No. C/759 to 764/09 and Appeal No. C/767 relates to the situation wherein the assessment of Bills of Entry were made without considering the decision of the apex court in the case of TISCO and the appellants were required to pay import cess on the coal. The appeals No. C/765/09 and C/769/09 pertains to the situation where the Bills of Entry were assessed to nil rate of duty after considering the decision of the apex court in the case of TISCO (supra). 13. The issue arises before me from the submissions made by the learned Advocate is that - (1) Whether the refund claims are acceptable without challenging the assessment of Bills of Entry or not? (2) Whether the provisions of Section 154 of the Customs Act,....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... from the record, it clear that the decision of the TISCO (supra) was not in the knowledge of the proper officer while assessing the impugned Bills of Entry in situation (a). Further, in the case of Jailaxmi Coelho vs. Oswald Joseph Coelho (2001) 4 SCC 181, the Court while passing decree of divorce was having an agreement between the parties and as per the agreement, the impugned flat is to be transferred within four months from the date of agreement and the decree of divorce has been passed after the four months of the agreement. Hence, in that case also, it was in the knowledge of the Court while passing the decree that as per agreement the flat has to be transferred to the husband within four months of the agreement; hence, those facts are not relevant to these cases. 14.3. In the case if Samarendra Nath Sinha vs. Krishna Kumar Nag -1967 AIR 1440 (SC) the apex court has observed as under:- Under section 152, clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either on its own motion or on an application by any of the parties. It is, thus, manifest that er....
X X X X Extracts X X X X
X X X X Extracts X X X X
....order and the Hon'ble High Court of Madras held that this defect is curable under Section 154 of the Customs Act, 1962. In fact, this case law supports the appellant's case. 14.5. In the case of Master Construction Co. vs. State of Orissa - 1966 AIR 1047 the Hon'ble apex court held that - An arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made. There is another qualification namely, such an error, shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery, on elaborate arguments on questions of fact or law. The accidental slip or omission is an accidental slip or omission made by the court. The obvious instance is a slip or omission to embody in the order something which the court in fact ordered to be done. This is sometimes described as a decretal order not being in accordance with the judgment. But the slip or omission may be attributed to the Judge himself. He may say something or omit to say something which he did not intend....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al as in that case the proper Officer after considering the decision of TISCO (supra) assessed the Bill of Entry by asking the appellant to pay the duty/cess. In that case without challenging the said order, the appellant cannot asked for the refund as rightly held by this Tribunal. Hence, the facts of that case are somehow different from the facts of the cases before me. In the case of Priya Blue (supra) the facts are that the petitioners are imported a ship for breaking purpose and Bill of Entry was assessed and duty was paid accordingly. Although the duty was paid under protest the appellant filed a refund claim on the ground that the duty has been wrongly levied. The same was rejected and the Hon'ble apex court held that without challenging the assessment, refund claim was not maintainable. In this cases before me the facts are somehow different from the case of Priya Blue (supra). In fact the refund claim has been filed by the appellant holding that the proper officer has not considered the decision of the apex court in the case of TISCO (supra) while assessing the Bills of Entry which is a mistake occurred due to accidental slip and omission by the proper officer. 15. In t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch of this Tribunal has held that even if there is a subsequent decision of the apex court on the subject, that is to be followed and in this case the decision of TISCO was already there when the Bills of Entry were assessed. In the case of Union of India vs. Aluminium Industries Ltd. 1996 (83) ELT 41 (Ker.) the Hon'ble Kerala High Court while dealing with the similar circumstances, where at the time of assessment, the correct rate of duty was not applied by the proper officer, later on the same was held by the Hon'ble Kerala High Court as an error arising in assessment on account of omission to apply the correct rate of duty. While dealing with the issue the Hon'ble Kerala High Court has observed as under:- Four types of errors are mentioned in the section for invoking power under it : (1) clerical mistakes (2) arithmetical mistakes (3) errors arising from accidental slips and (4) errors arising from accidental omissions. If any one of the above types of errors has crept in, then the corrective power mentioned in the section can justifiably be used. In this case, the error happened due to the omission to know of the new rates of import duty which has resulted in the assessment ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ould be borne in mind that assessment to Customs Duty is a highly technical job and only an officer, who is fully acquainted with the legal provisions and procedures, can competently complete the assessment without loss of revenue or depriving the importer of any benefit intended by an exemption notification. 7.3 The Hon'ble Apex Court, in the case of Shree Hari Chemicals v. UOI & Anr. - 2006 (193) E.L.T. 257 (S.C.), had observed that there was an obligation on the part of the Department to extend relief given by an unconditional exemption Notification and the same could not be refused merely because the appellants had omitted to claim that relief. Therefore, one cannot blindly apply the ratio of the Priya Blue case and also the Larger Bench decision of Eurotex case to the facts of the present case. In fact, in the case of G.S Metalica (cited supra), the Tribunal held the view that when the goods are assessed to higher Customs Duty only on account of omission by the assessing officer to take note of the relevant customs notification, the same can be corrected under Section 154 of the Customs Act, 1962 without taking recourse to appellate remedies provided in the Customs Act. Whi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... eligible for any relief, in view of Supreme Court judgment in Flock (India) & Priya Blue is not sustainable and deserves to be set aside. Therefore, following the ratio laid down in the case of VST Industries Limited and other decisions as cited supra, the refund claim is to be allowed treating the same as error committed by the customs officer and the same can be corrected under Sec. 154 of the Customs Act, 1962. Appeal allowed. Order accordingly. 16.3. In the case of Hero Cycles vs. UOI - 2009 (240) ELT 490 (Bom) the Hon'ble High Court has held that mere fact that there was an inadvertent error on the part of the importer in not claiming benefit of exemption notification cannot result in denial of the said benefit. It was the duty cast on the authorities to assess the goods and impose duty in accordance with law. The Hon'ble High Court has also held that duty cannot be demanded if it otherwise not payable. Once there is a power to assess, there is a corresponding duty to assess in accordance with law. Against this order the Revenue preferred an appeal before the apex court and the same was rejected as reported in 2010 (252) ELT A103 (SC). 17. In these appeals also, the pro....