Custom, Excise & Service Tax Tribunal
Isro Satellite Centre vs The Commissioner Of Customs (Appeals) on 11 March, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Appeal No: C/402/2004 & C/32 to 34/2005
(Arising out of (i) Order-in-Appeal No.87/2004 Cus. (B) dated 16.06.2004:
(ii) Order-in-Appeal No.135/2004 Cus. (B) dated 30.11.2004;
(iii) Order-in-Appeal No.07/2004 Cus. (B) dated 14.10.2004 &
(iv) Order-in-Appeal No.106/2004 Cus. (B) dated 14.10.2004
All passed by the Commissioner of Customs (Appeals), Bangalore.)
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?
Yes
3. Whether their Lordship wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
ISRO Satellite Centre Appellant
Vs.
The Commissioner of Customs (Appeals)
Bangalore. Respondent
Appearance Shri G. Shiva Dass, Advocate for the appellant.
Shri K. Sambi Reddi, Authorised Representative (JDR) for the Revenue.
CORAM DR. S.L. PEERAN, HONBLE MEMBER (JUDICIAL) SHRI T. K. JAYARAMAN, HONBLE MEMBER (TECHNICAL) Date of Hearing: 27.02.2008 Date of decision: 11.03.2008 ORDER No._______________________2008 Per Shri T. K. Jayaraman These appeals have been filed against the following Order-in-Appeals, all passed by the Commissioner of Custom (appeals), Bangalore.
(i) Order-in-Appeal No.87/2004 Cus. (B) dated 16.06.2004:
(ii) Order-in-Appeal No.135/2004 Cus. dated 30.11.2004;
(iii) Order-in-Appeal No.07/2004 Cus. (B) dated 14.10.2004 &
(iv) Order-in-Appeal No.106/2004 Cus. (B) dated 14.10.2004
2. Shri G. Shiva Dass, learned Advocate appeared on behalf of the appellant and Shri K. Sambi Reddi, Authorized Representative (JDR) for the Revenue.
3. We have heard both sides. The brief facts of the case are that the appellants M/s. ISRO Satellite Centre, Airport Road, Bangalore imported several items. Even though, they were entitled for the exemption under Notification No.51/96 dated 23.7.96 as amended by 93/96, due to certain problem in the software being used in the EDI system, they wrongly paid the duty at the rate of 5% on all exempted goods (Integrated Circuits) wrongly. They were rightly entitled for the benefit of the exemption. Therefore, they claimed refund of the duty paid. The Revenue rejected the refund claim which is the subject matter of these appeals as time barred. Therefore, the refund claim which was filed on 19.3.2004 in respect of Bills of Entries filed earlier, was rejected by the department. The Original Authority rejected the refund claim. The Appellate Authority also upheld the impugned order of the Original Authority rejecting the refund claim.
3.1 We find that the original Bills of Entry were filed on 14.2.2003, 18.3.2003 and 14.11.2003. Even in the letter dated 17.7.2003, the appellanta stated that the discrepancies of payment of 5% came to their notice and therefore, they requested for consideration of nil rate of duty. The Appellate Authority has given a finding that even at that time they could have filed the refund claim in time, so that the claim would not have been rejected on account of time bar. Further, they also filed letter on 30.10.2003 and 2.12.2003 requesting for assessment at nil rate of duty. They submitted before the lower authority that their letter dated 17.7.2003 may be taken as duty paid under protest. The Appellate Authority has given a finding that the provision of duty paid under protest will be applicable only when the assessee disputes the classification/valuation/cenvat credit availment and makes payment under protest subject to clarification of the matter at a latter stage, so that they can claim refund easily without the application of limitation of time bar. This provision cannot be made applicable at a latter stage but only at the time of payment of duty. Therefore, he has rejected the refund claim on account of time bar. In other words, he has upheld the order of the lower authority rejecting the refund claim 3.2 On a very careful consideration of the issue and also on the basis of the submissions of the learned Advocate, we find that the appellant had to pay duty at 5% not because they chose to pay the duty but because of the glitch in the EDI system. Therefore, there is absolutely no mistake on the part of the appellants. They also in their letter dated 17.7.2003 pointed out the mistake. Further, our attention was invited to Section 154 of the Customs Act:
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 accident slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be.
Because of the glitches in the EDI System, the appellants had to pay duty when they were not required to pay this. Therefore, this amount is not due to the Government and if duty is paid because of the error in the EDI system, it should be taken as a clerical error or as an arithmetical mistake only. The arithmetical mistake can be corrected any time as can be seen from Section 154. In these circumstances, the refund which arises out of Section 154 cannot be hit by time bar under Section 27 of the Customs Act or in other words, the time bar should not be an obstacle for the appellants to get the refund claim. Even on 17.7.2003, the appellants had stated that they had detected the mistake and informed the department. In a case like this, the department should not reject the refund claim on account of technicalities.
3.3 Our attention was also invited to several decisions of this Tribunal wherein it was held that refund arising out of correction of clerical error is admissible under Section154 even without filing the claim under Section 27. Goa Shipyard Ltd. Vs. CC, ACC, Sahar - 2006 (72) RLT 479 (CESTAT-Mum.) the ratio of that case is applicable to the present appeals also. Further, the decision of the Tribunal in the case of Collector of Customs, Chandigarh Vs. Oswal Woolen Mills Ltd. - 1995 (76) ELT 408 (Tribunal) is also relevant. In this case also it has been held that Section 154 of the Customs Act, 1962 being independent of Section 27 ibid, refund claim in terms of Section 154 to be examined any time and correction ordered and consequential relief granted. Therefore, we are of the view that the appellant is entitled for the benefit of the refund. There is no merit in the impugned order of the Commissioner (A), therefore, we allow these appeals with consequential relief.
(Pronounced in open Court on 11.03.2008 ) (T.K. JAYARAMAN) Member (T) (S.L.PEERAN) Member (J) //rv//