TaxTMI 
TaxTMI 
2018 (9) TMI 1736
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....nd the 1st respondent-Importer. According to the 1st respondent, they cleared a consignment of automobile components, under the Bill of Entry No.985545, dated 22.03.06. The supplier had put an extra zero by mistake in the figure, representing freight, in the related invoice, dated 10.03.06. Accordingly, the Bill of Entry was assessed, in accordance with the declaration, regarding the freight amount. The 1st respondent paid the duty assessed, without any protest. Thereafter, the 1st respondent pointed out the mistake to the supplier and that the supplier issued a certificate, dated 06.04.2006, clarifying the error and also issued a credit note, in favor of Volvo, for the excess freight charged, in the invoice. Presenting the same, the 1st respondent sought for permission of the authorities, to correct the error, in the Bill of Entry, in terms of Section 154 of the Act and refund of the excess duty paid of Rs. 3,79,637/-. The lower authority denied permission. 3. Against which, the 1st respondent has filed an appeal before the Commissioner (Appeals) and vide Order-in-Appeal, dated 06.09.2006, the appellate authority held that the 1st respondent could claim refund of the excess dut....
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....ty and value of the goods (where the duties are assessable" on value basis), to determine the duty liability, which is required to be. paid by the importer. Assessment is hence the"procedure whereby the duty leviable on the imported goods can be ascertained. In this connection, it is pertinent to draw attention to the case of COLLECTOR OF CENTRAL EXCISE, MADRAS Vs INDIA TYRE & RUBBER CO. LTD. 1997 (94) E.L.T. 495 (Mad.)- where it was held that once an assessment is provisional, it is provisional for all purposes and not necessarily provisional in respect of the particular ground considered. The relevant portions of the order are as follows: 4. We find that the issue that has been referred to for our consideration is no longer res integra and the matter is covered by more than one decision of the Apex Court and the larger bench of the Tribunal constituted under the Act. In the light of the judgment of the Apex Court reported in Samrat International (P) Ltd. v. Collector of Central Excise - 1992 (58) E.L.T. 561 and the subsequent decision 1991 (55) E.L.T 592 which came to be rendered by the Larger Bench of the Tribunal under the Act after considering not only the decision of....
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....espondent, as hereunder: "4. On a careful consideration of the facts of the case and the submissions by both sides, I find that the lower appellate authority had denied the claim for refund of the excess duty paid erroneously on the sole ground that the assessment of the subject consignment was provisional. There is consensus between parties as regards the excess payment of the amount claimed. The Commissioner (Appeals) held that refund of the excess duty paid by mistake could not be allowed before finalizing the provisional assessment. I find that in the case of Brakes India Ltd., v. CC, Chennai [2008 (221) ELT 300 (Tri.- Chen.)] case, the Tribunal held that the 'right of an importer to seek amendments in the Bills of Entry under Section 149 of the Act was not altered by the judgments of the apex Court in the case of CCE, Kanpur v. Flock (India) Pvt. Ltd., - 2000 (120) ELT 285 (S.C.), (supra) and Priya Blue Industries Ltd., v. CC (Preventive) - 2004 (172) ELT 145 (S.C.). In that case facts Were that the appellants had sought amendment of several Bills of Entry enabling them to pay the CVD in cash. The liability to CVD had been met by adjustment of credit in t....
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....ct. I find that the Section provides for correcting errors of the nature involved in the instant case 'at any time'. No provision in the Act prohibits rectification of the errors in the provisional assessment under Section 154 and allowing the importer consequential relief. Grant of refund arising out of such rectification shall be subject to the provisions of Section 27 (2) of the Act prescribing test of unjust enrichment. The assessing authority shall allow the appellants to correct the error in the Bill of Entry under Section 154 of the Act and the consequential refund. The appeal is allowed. " 5. Being aggrieved by the Final Order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai, the instant Civil Miscellaneous Appeal is filed by the Commissioner of Customs (Port-Imports), on the following substantial questions of law, "(1) Whether the clerical errors committed by the importer on the documents presented for clearance of import can be corrected under Section 154 of Customs Act, 1962, by way of a reassessment? (2) Whether the provisionally assessed Bill of Entry can be reassessed more than once by the comp....
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....es, to assess the goods and impose duty, in accordance with law. Bombay High Court also held that, duty cannot be demanded, if it is otherwise not payable. Said Court has held that 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 Hon'ble Apex court, and that the same was rejected in Union of India v. Hero Cycles reported in 2010 (252) ELT A103 (SC). 10. In the case on hand, from the material on records, we could see that apparently, there was a error, on the part of the supplier, who has inadvertently charged SEK 199450 (Rs.11,36,865/-), whereas, the actual freight incurred was only SEK 19945 (Rs.1,13,686.50). Even the supplier has admitted the mistake and they have given a credit note, for the difference involved. Appraiser, who was present in the personal hearing, before the Original Authority, has shown that the split values appearing in the invoice, and admitted that there could have been a mistake in the assessment, due to the wrong figures given by the 1st respondent, and placing on record the above, the Commissioner (Appeals) has observed that excess amount....