Custom, Excise & Service Tax Tribunal
M/S. Sesa Goa Ltd vs Commissioner Of Central Excise, Goa on 29 September, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. C/759 to 767/09 - Mum
(Arising out of Order-in-Appeal No. GOA/CUS/MP/15 to 23/2009 dated 24.04.2009 passed by the Commissioner of Central Excise & Customs (Appeals), Goa).
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s. Sesa Goa Ltd.
:
Appellantss
Versus
Commissioner of Central Excise, Goa
Respondents
Appearance Shri Vishal Agarwal, Advocate for Appellants Shri S.S. Katiyar, SDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 19.08.10 Date of Decision : .
ORDER NO.
Per : Ashok Jindal Heard both sides finally on 19.8.10. As it was a bunch of nine appeals, the learned Advocate for the appellants was directed to file synopsis along with details of each appeals within 15 days of the final hearing. The learned DR also sought to file written submission within 15 days but the DR sought extension of time to file the written submission and finally he submitted the written submissions on 13.09.10 and the same has been taken on record and considered.
2. The facts of the case in brief are that there are nine appeals which can be divided into two categories - Appeals No. C/759/09 to C/764/09 & C/767/09 are having identical facts and the remaining two (Appeals No. C/765/09 and 766/09 are having similar facts.
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 Honble 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 appellants filed the refund claims of the amount paid by them as cess at the time of release of the goods provisionally on the ground that while finalising assessment of Bills of Entry, the adjudicating authority has not considered the decision in the case of TISCO (supra), which was to be considered while assessing the Bills of Entry finally. All the refund claims were rejected by the lower authorities on the ground that the appellants have not challenged the assessment of Bills of Entry as held by the Honble apex court in the case of Priya Blue Inds. Ltd. vs. Commissioner of Customs(P) 2004 (172) ELT 145 (S.C.) wherein it was held that when the assessment has been finalised, no refund claim will be entertained without challenging the assessment. Aggrieved by the said rejection of the refund claims by the lower authorities, the appellants are before me.
4. Shri Vishal Agarwal, learned Advocate appearing on behalf of the appellants submitted that while assessing finally the Bills of Entry, the adjudicating authority has not considered the 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. He also submitted that the adjudicating authority is bound by the decision, while assessing the Bills of Entry, the adjudicating authority committed a mistake by not considering of the decision of the TISCO (supra) hence, the said mistake can be rectified under Section 154 of the Customs Act, 1962. He also submitted that as per Article 141 of the Constitution of India, the decision of the Honble apex court is binding on all Courts within the territory of India and as per Article 144 of the Constitution of India, all authorities, Civil and Judicial in the territory of India shall act in aid of the Supreme Court. Hence, the decision of the apex court was binding on the adjudicating authority while assessing the Bills of Entry and the same was omitted by accidental slip by the adjudicating authority during the course of assessment. Hence, the mistake is rectifiable under Section 154 of the Customs Act, 1962 which provides that errors arising from any accidental slip or omission may, at any time, be corrected by the officer of the Custom or his successor in the office of such officer. Hence, there is no question of challenging the assessments of Bills of Entry as the refund claims 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 Blacks Law Dictionary to mean neglect to perform what the law requires. 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 should be so manifest and clear and that no court would permit it to remain on record. He also relied on the decision in the case of Hindustan Lever Ltd. vs. Commissioner of Central Excise 2006 (202) ELT 177 wherein the Larger Bench of this Tribunal has held that even if there is a subsequent decision of the apex court on the subject, an application for rectification of mistake would lie as it was declared by the Honble Supreme Court is the law as was always prevalent. He also submitted that in the case of UOI vs Aluminium Indistries 1996 (83) ELT 41 (Ker.) the Honble High Court of Kerala, on an appeal preferred by the Revenue, applied the provisions of Section 154 and permitted reassessment so as to correct an error arising in the assessment on account of omission to apply the correct rate of duty. He further submitted that in the case of Bennett Coleman & Co. Ltd. reported in 2008 (232) ELT 367, this Tribunal has applied the provisions of Section 154 in a case where the assessing officer had omitted to give effect to an exemption notification in respect of certain goods imported. He further submitted that in the case of G.S. Metalica vs. Commissioner of Customs(Import) 2007 (217) ELT 466 this Tribunal held that omission to apply the correct rate of duty could be rectified by the proper officer even during the refund proceedings. He also submitted that in the case of Hero Cycles vs UOI 2009 (240) ELT 490 (Bom.) the Honble High Court of Bombay while dealing with a Writ Petition seeking action under Section 154 in respect of a similar situation where a claim for refund filed by the importer has been rejected on the ground that the assessment of Bill of Entry has not been challenged, directed the proper officer to amend the original assessment by holding that the 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 Honble High Court also held that the duty cannot be demanded, if it is otherwise not payable. Once there is a power to assess, there is corresponding duty to assess in accordance with law. The SLP against the findings of the Honble High Court in the case of Hero Cycles ((supra)) was dismissed by the apex court in 2010 (252) ELT A103 (S.C.) He also relied on the case of Bansal Alloys & metals Ltd. vs. CC-2009 (240) ELT 483, wherein the Honble 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 Honble 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 Honble 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 Customs Act, 1962 against the order of the Tribunal uphold the rejection of rebate claim on the premise that the assessment has not been challenged. The Honble High Court has held that the refund of the appellant was maintainable under Section 27 of the Customs Act, 1962 and non-filing of the appeal against the assessed Bill of Entry in which there was no lis between the importer and the Revenue at the time of payment of duty will deprive the importer of his right to file refund claim under Section 27 of the Customs Act, 1962.
5. With regard to the Appeals No. 765 and 766 of 2009, he submitted that while assessing finally the Bills of Entry the adjudicating officer considered the decision of TISCO (supra) and assessed duty / cess payable as NIL. When the duty payable is nil, question of challenging the said assessment does not arise as the appellants have paid the cess under protest at the time of provisional assessment, same is to be refunded without asking to challenge the final assessment. He also referred to the decision of this Tribunal in their own case reported in 2009 (247) ELT 606 (Tri Mum) and submitted that the facts of that case are somehow different from the facts of the present appeals. In fact, in that case the adjudicating authority asked the appellant to make the payment of cess after considering the decision of TISCO (supra) but which is not in the instant appeals. Finally he relied on in the case of Alnoorani Tobacco Products vs CCE reported in 2004 (170) ELT 135 wherein the Honble apex court held that circumstantial flexibility, one additional or different fact may make world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. Finally he prayed that the decision of Priya Blue (supra) which was relied on by the lower authority is not applicable to the instant appeals. Hence, the impugned orders are liable to be dismissed and the appeals be allowed with consequential relief.
6. On the other hand the learned DR submitted that in these appeals the sole ground for denial of refund claim is that the assessment has not been challenged in view of the decision of the Honble apex court in the case of Priya Blue (supra). He further submitted that the appellants filed the refund claim in view of the apex courts decision in the case of TISCO (supra) wherein it was held that 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 and it is an admitted fact that the appellant has not applied to the assessing officer for correction of any errors in its order and neither has the assessing officer suo-moto corrected any of the order passed by him. As the issue of rectifying the mistake under Section 154 was never raised before the original authority, the issue cannot be raised at this stage. It was contended by the learned Advocate that the decision of the Honble Supreme Court in the case of TISCO (supra) and to give effect thereof and have assessed accordingly is an omission in terms of Section 154 of the Act is not tenable as held by the appellants own case by this Tribunal reported in 2009 (247) ELT 606 (Tri. Bom.). With regard to appeals No. C/765 and 766 of 2009 he submitted that although the duty has been deposited under protest and the assessment was done at nil rate of duty was not accepted by the assessing officer while dealing with the refund claim. He further submitted that if an assessee who pays duty under protest and fails to file appeal even when the Bills of Entry are finally assessed has lost the statutory remedy under the law and must suffer the consequences of his actions. He further submitted that the case law relied upon by the appellants are not relevant to the facts of these appeals. Hence, they are not to be considered but in support of his contention he placed reliance on the following case law:-
1. CCE Vs. Tata Iron & Steel Co. Ltd.
2003(154) ELT-343(SC)
2. Priya Blue Inds. Ltd. Vs. CC(P) 2004(172) ELT-145(SC)
3. CCE Kanpur Vs. Flock(I)P. Ltd.
2000(120) ELT-285(SC)
4. Sesa Goa Ltd. Vs. CC Goa 2009(247) ELT-606(TRI-MUM)
5. Dwarka Das Vs. State of M.P. 1999 AIR(SC) 1031
6. Jailaxmi Coelho vs. Oswal Joseph Coelho 2001 (4) SCC 181
7. Samarendra Nath Sinha Vs. Krishna Kumar Nag 1967 AIR 1440
8. CCE Vs. Samudram 1997(95)ELT-33(MAD)
9. Master Construction Co. Vs. State of Orissa 1966 AIR 1047
10. Triumph Nuclear Medicine Vs. CC 2008(223) ELT-74(TRI-MUM)
11. Tecumseh Products India Ltd. vs. Commissioner of Customs (Import) Mumbai Order No. A/160/10/CSTB/C-II dt. 07.05.2010.
7. Finally he submitted that the appeals are to be dismissed and impugned orders to be sustained.
8. During the course of arguments, the learned DR relied on only the decision of Priya Blue and Tecumseh Products India Ltd. (supra) but in written submissions, he 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 Honble 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/766 of 2009.
11. There are total nine appeals are before me for disposal and the details of the appeals are as follows:-
Sr.No. Appeal No. B/E No. Description of the imported goods Assessment of the B/E 1 C/759/09-Mum 4/05-06 dated 30.11.2005 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.2,20,521/-2
C/760/09-Mum 01/06-07dated 07.4.2006 Tanmoor Hard coking coal with ash content below 12%.
Import cess @ Rs.4.25% PMT on B/L quantity + 2% Edu. cess thereon equal to Rs.2,33,751/-3
C/761/09-Mum 01/05-06 dated 3.10.2005 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.2,32,855/-4
C/762/09-Mum 02/05-06 dated 20.10.2005 Hard coking coal with ash content below 12% Import cess @ Rs.4.25% PMT on B/L quantity + 2% Edu. cess thereon equal to Rs.3,23,859/-5
C/763/09-Mum 07/05-06 dated 14.3.2006 Goonyella coking coal with ash content below 12% Import cess @ Rs.4.25% PMT on B/L quantity + 2% Edu. cess thereon equal to Rs.2,28,429/-6
C/764/09-Mum 02/06-07 dated 7.4.2006 Metropolitan hard coking coal with ash content below 12% Import cess @ Rs.4.25% PMT on B/L quantity + 2% Edu. cess thereon equal to Rs.92,709/-7
C/765/09-Mum 06/06-07 dated 20.12.2006 Tahamoor hard coking coal ash content below 12% No duty was assessed as payable. Bill of Entry contained an endorsement to the effect that Customs cess- Nil, as this coal is imported and not raised or/manufactur ed and despatched from collieries in India, as per Honble supreme Court judgment in case No. 2003 (154) ELT 343. However, an amount of Rs.5,52,861/- deposited under protest.8
C/766/09-Mum 05/06-07 dated 20.11.2006 River-side coking coal with ash content below 12% Nil- No duty was assessed as payable. Bill of Entry contained an endorsement to the effect that Customs cess- Nil, as this coal is imported and not raised or/ manufactur ed and despatched from collieries in India, as per Honble 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, 1962, which deals with clerical errors etc. are applicable to these cases or not?
The situations (c) are not before me. Appeals No. C/759 to 764/09 and 767/09 pertains to situation (a) and Appeals No. 765/09 and 766/09 pertains to situation (b).
14. The contention of the learned Advocate that as per Article 141 and Article 144 of the Constitution of India, the law laid down by the Honble apex court is binding upon all courts within the territory of India and that all authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court is having the convincing force. It means that all the courts and the authorities are bound to follow the decision of the apex court in strict terms. In the cases before me, it is the duty of the assessing officer while assessing the Bills of Entry as per Section 17 of 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 Honble 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?
14.1 As per the learned DR, the proper officer has passed the order without considering the decision of the apex court in the case of TISCO (supra) are not covered by Section 154 of the Customs Act, 1962 and in support of this contention his main stress on the following judgements which are dealt in details as under in following cases.
14.2 In the case of Dwarka Das vs. State of M.P 1999 AIR(SC) 1031, the Trial Court had specifically held that the respondents-State is liable to pay future interest only, despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant in so far as pendente lite interest was concerned. In that case, the Honble apex court has held that the prayer for pendente lite interest was made before the Trial Court but after considering the prayer, the Trial Court granted them future interest. In that situation, it was in the knowledge of the Trial Court of the prayer of the appellant. The said decision is not applicable in the facts of these cases as 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 errors arising from an accidental slip can be corrected subsequently not only in a decree drawn up by a ministerial officer of the court but even in a judgment pronounced and signed by the court. As already pointed out, the mortgage in question was one by conditional sale empowering the mortgagee to take possession of the mortgage security if the monies due there under were not paid by the due date. The suit filed by the mortgagee was also for a foreclosure decree. The tenor of the judgment of the Trial Court shows that the court meant to pass such a foreclosure decree. Further, the Court held that, There can therefore be little doubt that the court had no occasion to pass a preliminary decree for sale and that it was through an accidental slip or inadvertence that in the penultimate part of its judgment the court used the phraseology proper in a mortgage decree for sale. Hence, the Court concluded that, This being the position the Trial Court had the power under section 151 and section 152 to correct its own error which had crept in the judgment and the preliminary decree and pass a proper final decree for foreclosure as intended by it. It is evident that the Apex Court approved correction under section152 by the Trial Court because it found that the tenor of the judgement of Trial Court showed that the Court meant to pass a foreclosure decree and had no occasion to pass a preliminary decree for sale and it was only through an accidental slip or inadvertence that in a part of its judgement, the Trial Court used phraseology proper in a decree for sale.
and in this case the Honble apex court allowed the correction.
14.4. In the case of CCE vs. Samudram 1997 (95) ELT 33 (Mad) the Honble High Court of Madras found that no specific finding has been recorded exonerating the respondent alone out of the total number of 8 persons to whom the notice of adjudication proceedings has been issued. This would go to inevitably discloses that the omission to advert to the name of the respondent or the omission to make reference to the respondent at the stage of recording a findings of guilt and imposing penalty ought to have been only due to accidental slip or omission. In this case the goods were seized from the house of the respondent during search and the respondent played key role in the offence and by mistake the penalty could not be imposed in the final order and the Honble 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 appellants case.
14.5. In the case of Master Construction Co. vs. State of Orissa 1966 AIR 1047 the Honble 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 to say or omit. This is described as a slip or omission in the judgment itself. The cause for such a slip or omission may be the Judges inadvertence or the, advocate's mistake. But, however wide the said expressions are construed; they cannot countenance a re-argument on merits on questions of fact or law, or permit a party to raise new arguments which he has not advanced at the first instance. 14.6. In the case of Triumph Nuclear Medicine vs. Commissioner of Customs 2008 (223) ELT 74 (Tri. Mum) the facts are that the Commissioner while passing the order, found that the appellant has violated the conditions of Exemption Notification No. 64/88-Cus dated 1.3.88 and the appellant was allowed to redeem the goods on payment of redemption fine, duty and penalty. The said order was not challenged but the appellant filed an application before the Commissioner that the benefit of Notification has not been given to them and it is the tariff rate, which has been applied and duly calculated. According to them duty element comes down to Rs.29.59 lakhs approximately against the duty confirmation of Rs. 58.94 lakhs. In this case it has been specifically communicated to the appellant by the Asst. Commissioner through a letter that duty was correctly quantified. When there is a clear-cut findings by the Commissioner that duty has been correctly quantified hence the plea that it is an error cannot be rectified under Section 154 of the Customs Act, 1962. Hence, the facts of the case are also not relevant to the cases before me. These facts deals the matter in situation c.
14.7. The learned DR also relied on the decision in the case of Tecumseh Products India Ltd. vide Order No. A/160/10/CSTB/C-II dated 7th May 2010. The facts somehow are different as in that case the appellant has to fulfill the conditions of the Notifications to avail exemption and it is the matter of record that the appellant fulfilled the one condition of the Exemption Notification but could not met the 2nd condition and the required certificate as per the 2nd condition was obtained after the assessment of the Bill of Entry. Hence, these facts are not relevant to decide the issue before me.
14.8. The learned DR has also relied on the case law of the decision of the appellants own case cited in 2009 (247) ELT 606 (Tri-Mum) wherein the Situation (c) discussed above was dealt with by this Tribunal 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 Honble 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 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 Honble apex court in the case of TISCO (supra). Section 154 of the Customs Act, 1962 deals with the situation where there is a clerical or arithmetical mistakes in any decision or errors arising therein from any accidental slip or omission at the time of assessing the Bill of Entry and same can be corrected by the proper officer. In these appeals, the proper officer failed to take the cognizance of the decision in the case of TISCO (supra) while assessing the Bills of Entry which can be termed as accidental slip or omission. As per the law dictionary omission means neglect or failure to perform what the law requires and in this case law requires to assess the Bill of Entry after taking note of the decision of TISCO which was omitted by the proper officer. If for such omissions or errors committed by the proper officer, the same is to be corrected while dealing with refund claims filed by appellant, the same will tantamount to be done under Section 154 of the Customs Act, 1962. That is why the legislature incorporated the Section 154 of the Customs Act into the statute book to rectify such omission or error without challenging the assessment. In the case of Asst. Commr. Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Ltd. 2008 (230) ELT 385 (S.C.) the Honble apex court has held that an error apparent would mean an error which strikes on mere looking and does not need long drawn out process of reasoning. In these appeals it is clear from the face of the Bills of Entry that while assessing the Bills of Entry, the decision of TISCO was not considered at all. In the case of Hindustan Lever Ltd. vs. Commissioner of Central Excise, Mumbai 2006 (202) ELT 177 (Tri. LB) the Larger Bench 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 Honble 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 Honble 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 Honble 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 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. ltd. vs. Commissioner of Customs, Bangalore 2008 (232) ELT 367 (Tri. Bang.) this Tribunal has held that where the assessing officer had omitted to give effect to an exemption notification in respect of certain goods imported. Assessee therein on realizing the fact that benefit of exemption notification had not been extended, filed a claim for refund which was rejected on the same ground as in the instant case. The Tribunal while dealing with the assessees appeal held as under:-
7.?We have gone through the records of the case carefully. The appellants imported Newsprint and filed the Bills of Entry. The assessment is carried out by the assessing officer. When the goods are subjected to Customs Duty, it is the responsibility of the assessing officer to correctly assess the goods to duty. The importer, in the Bill of Entry, furnishes the description of the goods. He also submits documents like invoice, packing list, technical literature, bill of lading, etc. so that correct assessment is carried out. Generally, assessment involves classification of the goods, valuation and applying the correct rate of duty taking into account the exemption notifications. The import of the goods with regard to the Import-Export Policy is also to be examined. The word assessment includes all the above. As regards the rate of duty, the Tariff Schedule against the description of the goods mentions the rate of duty. However, in certain cases, the goods are unconditionally exempted by virtue of certain exemption notifications. In other cases, the exemption from duty, either partial or complete, is dependent on certain conditions. For example, in certain cases, the importer is expected to furnish certificates from competent authorities. It should 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 Honble 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. 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 Courts 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 was collected without extending the benefit of an unconditional exemption notification. For the fault of the assessing officer, if the importer is compelled to pay huge revenue, it would definitely amount to mis-carriage of justice. Hence, we allow the appeal. 16.2. In the case of G.S. Metalica vs. Commissioner of Customs (Import) 2007 (217) ELT 466 the Tribunal held that the omission to apply the correct rate of duty could be rectified by the proper officer even during refund proceedings and the Tribunal has further observed as under:-
10. I have considered the rival submissions. In an identical case, this Honble Tribunal in the case of VST Industries Ltd. v. CC, Mumbai reported in 2007 (207) E.L.T. 513 (Tri-Mum.) = 2007 (5) S.T.R. 59 (Tribunal) has held that the ratio of judgment in the case of Priya Blue & Flock (India) would not come in the way of Customs Officer while passing an order under Section 154 of the Customs Act, 1962. It may be mentioned that in the aforesaid case in VST Industries Ltd., the appellant therein claimed the refund of excess Custom duty on excess freight and without noticing the same, the Bill of Entry was assessed by the Customs Officer resulting in excess payment of Customs duty which was sought to be refunded. The facts of the case as well as present appeal are identical, inasmuch as on account of omission on the part of the Customs Officers to take note of the relevant factor, directly effecting the assessment, higher Customs duty was assessed.
? 11. The present case is squarely covered by the decision of this Honble Tribunal in the case of VST Industries wherein the ratio of Honble Supreme Court judgment in the case of Flock (India) & Priya Blue have been distinguished. Accordingly, the objections raised by the Department and the findings of the Commissioner (Appeals), in the impugned order to the effect that the appellant is not 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 Honble 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 Honble 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 Honble 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 Honble Punjab and Haryana High Court in the case of Bansal Alloys & Metals Ltd. vs. CC-2009 (240) ELT 483, while dealing with the statutory appeal filed by the appellant in terms of Section 130 of the Customs Act, 1962, has 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 appellant and it was open to the appellant 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.
19. In these appeals also when the appellants imported the impugned goods it was on record that the decision of TISCO (supra) passed by the Honble apex court that no cess is payable on coking coal at the time of import, the cess on such coking coal was payable only if the coking coal was raised or manufactured in collieries in India. The assessment of Bills of Entry ought to have been amended to give effect to the law laid down by the Honble Supreme Court in the case of TISCO (supra).
20. From the above discussion, it is clear that in the Appeals No. C/759 to C/767/09 except C/765 and C/766 of 2009, the proper officer had committed the error by omission not to consider the decision of the Honble apex court in the case of TISCO (supra) which amounts to omission or accidental slip while assessing the Bills of Entry and the same is covered under Section 154 of the Customs Act, 1962. Accordingly, the assessments need not to be challenged in these appeals and are to be corrected under Sec.154 ibid while dealing with the refund claim under Section 27 ibid as held by the Honble Punjab & Haryana High Court in the case of Bansal Alloys and Metals Ltd. (supra).
21. With regard to Appeals No. C/765 and C/766 of 2009, the proper officer has rightly assessed the Bills of Entry considering the decision of TISCO (supra) and duty payable at nil rate. Hence, there is no question of denial of refund claim in these appeals. When there is no duty liability, any amount deposited under protest liable to be refunded.
22. The decision in the appellants own case (Sesa Goa Ltd.) relied upon by the learned DR is not relevant to these cases as in that case the proper officer while assessing the Bills of Entry asked the appellant to pay duty after due consideration of the decision of TISCO (supra) which is not in the above 9 appeals.
23. Accordingly, from the above discussions, the impugned orders denying refund claim are set aside by holding that the assessment of Bills of Entry need not to be challenged and the same can be corrected under Section 154 of the Customs Act, 1962, while dealing the refund claims. The appeals are allowed with consequential relief.
(Pronounced in Court on .) (Ashok Jindal) Member (Judicial) nsk 26