TaxTMI 
TaxTMI 
TaxTMI 
2014 (9) TMI 621
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.... Customs, Mumbai who sanctioned their refund claim but the same was credited to Consumer Welfare Fund on the ground that the appellant failed to pass the burden of unjust enrichment. The appellant filed an appeal before the first appellate authority, who dismissed the appeal by relying on the decision of the hon'ble apex court in the case of Flock (India) Pvt. Ltd., on the ground that, the appellant has not challenged the assessment of the Bill of Entry, therefore, their refund claim is not maintainable. Aggrieved from the said order, the appellant is before us. 3. Shri S.S. Gupta, learned consultant appeared on behalf of the appellant and submitted that the adjudicating authority has sanctioned the refund claim and held that bar of unjust enrichment is applicable which was challenged by them before the Commissioner (Appeals). The Commissioner (Appeals), without appreciating the merits of the case, dismissed the appeal on some other ground holding that the refund claim is not maintainable without challenge of the assessment of Bill of Entry. He further submitted that the view taken by the Commissioner (Appeals) is not correct. In fact, at the time of filing of the Bill of Entry, t....
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....f G.S. Metalica vs. Commissioner of Customs 2007 (217) ELT 466 (Tr4ibunal), 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. Therefore, he prays that the impugned order be set aside and the matter be remanded back to the first appellate authority to decide whether the appellant bas passed the bar of unjust enrichment or not and thereafter if the appellant has passed the bar of unjust enrichment, refund claim be allowed. 4. On the other hand, the learned AR strongly opposed the contention of the learned consultant and specifically relied on the decision of the Tribunal in the case of Super Cassettes Industries Ltd. vs. Commissioner of Customs, Kolkata 2003 (162) ELT 1148 (Tri.- Del.) wherein it wwas held that the argument of the learned counsel that the Commissioner (Appeals) has no power to look into the ratio laid down by the apex court judgment in the case of Flock (India) Ltd. (supra) is wholly miscon....
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....f the Customs Act, 1962, to assess the Bills of Entry in accorance with law but while assessing the Bills of Entry, the proper officer failed to consider the decision of the Hon'ble apex court in the case of TISCO (supra) in the appeals covered under situation (a). Now, the question arises that when the proper officer failed to assess the Bills of Entry in accordance with law can be rectified under Section 154 of the Customs Act, 1962 or not? 15. In this case the main issue is that whether the provisions of Section 154 of the Customs Act are applicable or not. In fact, it is the duty of the Customs Officer while assessing the Bills of Entry to assess in accordance with law. There is no dispute that when these Bills of Entry was presented before the proper officer for assessment, there was a decision of the apex court in the case of TISCO (supra) wherein it was held that no additional duty of customs (cess) is payable on import of coking coal. It is an admitted fact that while assessments were made in respect of the appeals No.C/759/09 to 764/09 and C/767/09 the proper officer omitted to take note of the decision of the Hon'ble apex court in the case of TISCO (supra). Sect....
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....s 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 made at the first instance. When the error was brought to the notice of the authorities they corrected it and imposed a duty of Rs. 11,99,211/- in accordance with the rate applicable to the goods. The principle underlying in Section 154 of the Act is that records relating to customs duty are maintained properly and correctly and that such records should represent the correct state of affairs. Almost a similar power can be found conferred on the Civil Court by Section 152 of the Code of Civil Procedure. All the four categories of errors enumerated by us above are mentioned in Section 152 CPC also." 16.1. In the case of Bennet Coleman & Co. ....
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....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. While taking this view, the Tribunal has followed the ratio of VST Industries Limited - 2007 (207) E.L.T. 513 (T) = 2007 (5) S.T.R. 59 (T) of the same Tribunal wherein the ratio of the Apex Court's judgment in the cases of Flock (India) Ltd. and Priya Blue have been distinguished. In these circumstances, we are of the considered view that the omission can be corrected under Section 154 of the Customs Act, 1962. Therefore, the appellant is rightly entitled for the refund of the amount, which....
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....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 proper officer had omitted to apply the decision of Hon'ble apex court in the case of TISCO (supra) at the time of assessment of Bills of Entry and the same ought to have been corrected by re-assessing the Bill of Entry and arrive at a correct liability in the proceeding relating to refund. 18. The Hon'ble Punjab and Haryana High Court in the case of Bansal Alloys & Metals Ltd. vs. CC-2009 (240) ELT 483, w....
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....130 of the Customs Act, 1962 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 and 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 which permits amendment of a Bill of Entry after clearance of goods for home consumption based on documentary evidence which was on record at the time of clearance of the goods. 9. Therefore, we remand the matter back to the first appellate authority to decide whether the bar of unjust enrichment is applicable to the facts of this case. If the bar of unjust enrichment is not applicable then the first appellate authority shall grant the refund clam of the appellant. With these observations the appeal is disposed of by way of remand. (Pronounced in Court on ____/12/2011) Per: P R Chandrasekharan: 10. I have carefully gone through the order passed by my learned brother, Membe....
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.... execution of a decree/order. In the case at hand it was specifically mentioned in the order of the Assistant Collector that the assessee may file appeal against the order before the Collector (Appeals) if so advised." 10.2 The hon'ble apex Court once again considered this issue in Priya Blue Industries vs. Commissioner of Customs (Preventive) reported in 2004 (172) ELT 145 (SC) and held as follows: "5. Under Section 27 of the Customs Act, 1962 a claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who had borne the duty. It has been strenuously submitted that the words "in pursuance of an order of Assessment" necessarily imply that a claim for refund can be made without challenging the Assessment in an Appeal. It is submitted that if the assessment is not correct, a party could file a claim for refund and the correctness of the Assessment Order can be examined whilst considering the claim for refund. It was submitted that the wording of Section 27, particularly, the provisions regarding filing of a claim for refund within the period of 1 yea....
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.... officer was not challenged before any Appellate Authority. Unless and until the order of assessment is reversed, modified or set aside by the Appellate Authority, they do not have right to claim the refund. By filing the refund against the assessment order, the assessment cannot be re-opened. On the other hand Deputy Commissioner, Refund should not have accepted the refund claim against the order passed by proper assessing officer who is junior to him or equivalent in rank. By re-opening of the assessment order by way of accepting refund application is not legal and proper and it tantamount to hearing in appeal by an authority who has no powers to hear an appeal. Under the Customs Act when any order of assessment is passed by an officer junior to Commissioner it has to be challenged before the Commissioner (Appeals) and not before any other authority junior to Commissioner (Appeals). Once the order of assessment is made it becomes final and it cannot be re-opened and re-decided except by way of filing an appeal before the Commissioner (Appeals). So accepting refund claim and deciding the issue is nothing but admitting an appeal which Asstt. Commissioner. Refund is not empowered un....
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....d by him, as he cannot be said to be aggrieved by the order of the assessment, as it is the job of the proper officer to pass a correct assessment order irrespective of the claim made by the assessee and the grievance is from the assessment order and not from the claim especially when the Apex Court in the two decisions in the case of Priya Blue and Flock India, has categorically held that a refund is not maintainable unless and until the assessment order in pursuance order in pursuance of which the duty was paid has not been challenged." 11. In the light of the above judgments of the hon'ble apex Court and the Larger Bench of this Tribunal, to my mind, it would be judicial indiscipline, if the matter is remanded to the lower appellate authority for re-consideration of the refund claim in the light of undue enrichment. In my view, the lower appellate authority has correctly held that inasmuch as the appellant did not challenge the original assessment order, they cannot take recourse to reopening of the assessment by filing a refund claim. Therefore, his decision that the refund claim is not maintainable is correct in law and does not merit any interference whatsoever. 12. Followi....
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....short landed. Ld. A.R. further stated that the matter is already settled by the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. (supra) and Flock (India) Pvt. Ltd, and there is no doubt that without challenging the assessment order refund claim cannot be filed. Ld. A.R. also argued that Sec. 154 of the Customs Act permits to rectify the arithmetical, clerical mistake or errors arising due to accidental slip or omission. In the present case, there is no arithmetical or clerical mistake. There is no accidental slip or omission and therefore, the Bill of Entry cannot be reassessed on the said grounds. In any case, the appellant has never applied for rectification under Section 154. In view of the said position, the view taken by the ld. Member (Technical) is correct. 4. I have considered the rival submissions. I have also gone through the orders of my ld. Brothers. The undisputed facts are that the appellant filed Bill of Entry for import of certain medicines. The medicines were correctly valued, classified and rate of duty as per the tariff was made applicable. It appears that there was an exemption notification covering the said medicines which was neither brought t....
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....or refund is concerned, that would only arise after the order is amended. The relief of refund claimed is not maintainable before the order of assessment is amended or modified as held by the Supreme Court in Priya Blue Industries (supra). The Petitioner no doubt has contended that he has not passed on the duties and as such the question of unjust enrichment wold not arise in the matter. That is not for us to answer today. That would only be on an appropriate application being filed for relief after original orders of assessment which have been quoted in our judgment are modified. I entirely agree with the ld. A.R. that the Tribunal is the creature of the Customs Act and cannot go being the provisions of the Act and has no extraordinary jurisdiction to direct Customs authorities to act in a particular way in the interest of justice. This Tribunal cannot direct the Customs authorities to amend the Bill of Entry when appellant has never asked for the same. The other judgment is that of Hon'ble High Court of Punjay & Haryana in the case of Bansal Alloys & Metals Pvt. Ltd. (supra). The facts of that case are very very different. In the said case, the Bill of Entry was assessed based u....
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....ing assessment proceedings cannot be considered as accidental slip or omission on the part of the proper officer. Accidental slip or omission will be taking British Pound instead of US$ or like. Mistake in the digits relating to value or rate of duty. In fact, while filing the Bill of Entry invariably the importer or the CHA indicates the value as per the Customs Act, indicates the tariff heading as also the exemptioin notification. The proper officer scrutinizes and checks the claim and thereafter assess the Bill of Entry. The decisioni of the Hon'ble Single Member in the case of G.S. Metalica (supra) is, therefore, per incuriam and cannot be applied in other cases. 5. Another case law quoted is that of Shri Hari Chemicals Export Ltd. (supra). In the said case the issue before the Hon'ble Supreme Court was whether merely a wrong mention of statutory provisions can lead to denial of benefit. In the said case, there was a mistake in mentioning the Rule 56A and Rule 57A and in it is in those circumstances, the Hon'ble Supreme Court has taken the said view. In the present case, there is no such mistake. Another case of quoted is that of Bennet Coleman & Co. Ltd. (supra). In the said ....