Custom, Excise & Service Tax Tribunal
M/S. Symrise Private Ltd vs Commissioner Of Customs on 3 June, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
C/155/2007/MAS
[Arising out of Order-in-Appeal No.C.CUS.157/07 dated 12.3.2007 passed by the Commissioner of Customs (Appeals), Chennai]
For approval and signature:
Honbe Ms. Jyoti Balasundaram, Vice President
Honble Mr. P. Karthikeyan, Member (Technical)
1. Whether Press Reporters may be allowed to see 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 the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s. Symrise Private Ltd.
Appellants
Versus
Commissioner of Customs,
Chennai
Respondent
Appearance:
Shri Hari Radhakrishnan, Adv.
Shri V.V. Hariharan, JCDR For the Appellants For the Respondent CORAM:
Ms. Jyoti Balasundaram, Vice President Mr. P. Karthikeyan, Member (Technical) Date of hearing : 3.6.2009 Date of decision: 3.6.2009 Final Order No.____________ Per P. KARTHIKEYAN M/s. Symrise Pvt Ltd (SPL) filed Bill of Entry No.303606 dated 25.9.2006 and Bill of Lading No.AC.6088480489 dated 28.8.06 for clearance of aromatic chemicals imported by it and paid the assessed duty of Rs.19,90,572/-. The duty was paid on the amounts covered by nine invoices. Erroneously duty was paid amount covered by invoice No.90454604 dated 17.8.06 pertaining to another consignment vide Bill of Lading No.AC 608/848/0489A assessed separately vide Bill of Entry No.305349 dated 27.9.06. Therefore, there was an excess payment to the tune of Rs.1,17,168/- pertaining to Invoice No.90454604 dated 7.8.06 when duty of Rs.19,90,572/- was paid on assessment of Bill of Entry No.303606 dated 25.9.06. The assessee requested the concerned Deputy Commissioner of Customs (Appraising) vide its letter dated 14th December 2006 for reassessment of Bill of Entry No.303606 dated 25.9.06 to enable it claim refund of the excess duty paid. Vide letter dated 18.12.06 the Deputy Commissioner (Appraising) informed the appellants that the refund claim was not maintainable when the assessee had not challenged the assessment order and which had become final. The assessee was also advised to file an appeal against the order of assessment of Bill of Entry No.300636 dated 25.9.1996. Aggrieved by the above communication the appellants filed appeal with the Commissioner (Appeals). Vide the impugned order the Commissioner (Appeals) reiterated the legal position communicated by the Assistant Commissioner of Customs (Appraising). Relying on the judgment of the apex Court in the case of Collector Vs. Flock (India) Pvt. Ltd [2000 (120) ELT 285 (SC)] and Priya Blue Industries Ltd. Vs. CC (Preventive) [2004 (172) ELT 145 (SC)]. He observed that unless the order of assessment was altered by way of filing appeal, a refund claim could not be entertained by another officer of the equal rank. He also found that provisions of Section 154 of the Customs Act, 1962 (the Act) provided for correction of clerical errors in an order by the departmental officers and not an error committed by the importer in furnishing data in the Bill of Entry. Even assuming that incorrect information was furnished by the appellants amounted to clerical error, rectification of the same would amount to reassessment of the goods which could not be carried out until the order of assessment was altered by way of appeal.
2. In the appeal before the Tribunal, the appellants have relied on the following instructions contained in the CBEC Circular F.No.55/98/70-Cus IV dated 25.8.70. The appellants submit that in this case the Proper Officer has neither resorted to any adjudication proceedings paving way to challenge the issue nor the appellant at any point of time during the assessment posed a challenge and found aggrieved of the assessment order. When there exists no challenge at the time of assessment, filing of an appeal is incorrect. Therefore, both the cases stand distinguished and following the Tribunals decision in the case of PPN Power Generating Company Pvt Ltd Vs. CC, Chennai (Final Order No.782/08 dated 28.8.06), the CESTAT Chennai has held that :
It is on record that the Bill of Entry was assessed by the appraising officer in the Customs House and was not countersigned by the Asst./Dy. Commissioner, nor is there any material to indicate that the Asst./Dy. Commissioner concerned participated in any manner in the assessment. On these facts, it has to be held, as the Board themselves held in the aforesaid circular, that appellate remedy under Section 128 of the Customs Act was not available to the assessee and that it was open to them to file a refund claim under Section 27 of the Act pointing out the mistake, if any, of the assessment.
Considering the provisions of Section 122 of the Customs Act dealing adjudication of confiscation and penalties, it is submitted that the authority competent to assess the Bill of Entry is not Appraising Officer. The section cited provides that the Commissioner could adjudicate the confiscation of goods without limit whereas an Assistant Commissioner of Customs or Deputy Commissioner of Customs would adjudicate liability to confiscation of goods of value not exceeding Rs.2 lakhs. Further support of Section 128 of the Act any person aggrieved by any decision or order passed by an officer of Customs lower in rank when the Commissioner of Customs may appeal to the Commissioner (Appeals). In the present case the assessee could not file appeal as no appealable order was issued to him. It is also submitted that an excess duty paid owing to the importer declaring incorrect, wrongly exchanged the right etc could be rectified as a consequent correction of the error suo mottu under Section 154 of the Act when the appellants filing a refund claim under Section 27 of the Act. We have heard the ld. JCDR who reiterated the position that the Bill of Entry in question had been assessed by an Assistant Commissioner of Customs and refund of excess duty paid could not be allowed without successfully challenging the assessment.
3. We have considered the facts of the case and the orders cited above. Section 154 reads as follows:
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 may, at any time, be corrected by the Central Government, the Board or such officer or customs or the successor in office of such officer, as the case may be. In Cannon India Pvt. Ltd. Vs. CC [2006 (200) ELT 83 (Tri.Del)], the Tribunal held that clerical or arithmetical mistakes could be rectified suo mottu under Section 154. Relying on a decision of the Division Bench of the Tribunal in the case of Goa Shipyard Vs, CC., ACC, Sahar [2006 (72) RLT 479 CESTAT-MUM] it was held that refund could be allowed to the importers as a consequent of correction of clerical error under Section 154 when the importer have not filed refund claim under Section 27. In the case considered by the Tribunal in Cannon India Pvt Ltd (supra) excess payment had occurred due to clerical error committed by the importer and not by the authorities. We find that the importer had approached the Dy. Commissioner of Customs (Appraising) as early as in 14th December, 2006 to reassess the Bill of Entry to enable them to claim refund of the excess duty paid. We find that the first appellate authority wrongly held that the provisions of Section 154 applied only to clerical errors committed by the officers of the department. The position that the assessment remained final unless and until the same was disturbed by request to a process recognized by law such as filing an appeal does not entitle an importer to the benefit on consequent of correction of clerical error specifically provided under Section 154 of the Act. This right of the importer is not removed for whittled down by the judgment of the apex Court in CC, Kanpur Vs. Flock (India) Ld (supra) and Priya Blue Industries (supra). In the facts and circumstances, we vacate the impugned order and allow the appeal filed by M/s. SPL. The appellants shall be entitled to refund of the excess duty paid subject to the test of unjust enrichment from the angle of unjust enrichment (Dictated and pronounced in open court) (P. KARTHIKEYAN) (JYOTI BALASUNDARAM) MEMBER (T) VICE PRESIDENT Swamy ??
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