Custom, Excise & Service Tax Tribunal
M/S. Luminous Power Technologies P.Ltd vs Commissioner Of Customs on 23 October, 2012
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Customs Appeal No. 200 of 2012
Date of Hearing: 23.10.2012
[Arising out of Order-in-Appeal No. CC(A)/ Cus/I & G/33/2012 dated 24.1.2012 passed by the Commissioner of Customs (Appeals), New Delhi]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Mathew John, Member (Technical)
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 : Yes
of the CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair : Seen
copy of the Order?
4. Whether Order is to be circulated to the : Yes
Departmental authorities?
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M/s. Luminous Power Technologies P.Ltd. Appellants
Vs.
Commissioner of Customs Respondent
New Delhi
Appearance:
Shri B.L.Narasimhan, Advocate for the Appellants
Shri R.K. Mathur, AR for the Respondent
CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Mathew John, Member (Technical)
ORAL ORDER NO . ________________________
Per Archana Wadhwa ( for the Bench):
After hearing both sides, we find that the appellant imported peizo crystal from Excelpoint Systems (Pte) Ltd. , Singapore and filed a bill of entry for clearance of goods. It is further seen that though the purchase contract entered into between the appellant and the foreign supplier showed the value of goods as 0.075 USD per piece, invoice was raised by the foreign supplier as 0.75 USD, inadvertently. As the appellant did not realised the above mistake, they cleared the goods on payment of duty at the value declared in the invoice i.e. 0.75 USD. Accordingly, goods were cleared by paying higher quantum of duty.
2. Subsequently, the appellant filed a refund claim on 19.10.2010, seeking refund of excess duty of Rs.11,28,590/- paid in excess on account of calculation errors. In the said refund application, they produced all the documents including the purchase order, amended / corrected invoices, issued subsequently by the supplier, performa invoice, credit notes issued by the foreign supplier, apology letter of the supplier, the other correspondence entered into between the appellant and the supplier. The appellant also attached previous bills of entry showing customs clearance of same goods at USD 0.075 per piece along with invoices and the original remittance number. Subsequently for obtaining refund, the appellant also moved the application before Asstt. Commissioner in terms of provisions of Section 154 of the Customs Act for rectification / correction of Bill of Entry.
3. Another application was filed subsequently for correction of calculating error for amendment of Bill of Entry under Section 149, it seems that both the applications were not taken up for disposal by the concerned officer.
4. The refund claim filed by the appellant was adjudicated by the original adjudicating authority, rejecting the same. It is seen from the order that the original adjudicating authority observed that party has not submitted the requisite documents in support of their refund claim. He also took note of the Honble Supreme Court judgement in the case of Collector vs. Flock (India) Pvt. Ltd. [2000 (120) ELT 285 (SC)] and observed that inasmuch as no appeals stand filed against the Bill of Entry, their refund claim cannot be sanctioned.
5. Appeal against the above order did not succeed before Commissioner (Appeals), who rejected the same on the short ground that reassessed Bill of Entry was not produced by the appellant. He accordingly observed that as and when the appellants submits reassessed Bill of Entry under Section 154 of the Customs Act, refund claim would get automatically restored for scrutiny and disposal. He also directed the jurisdictional officers to immediately pass orders on pending reassessment application of the appellant. Though the said order of Commissioner (Appeals) was passed in January, 2012, we are informed by the learned advocate appearing for the appellant that the orders on their applications filed under Sections 149 and 154 of the Customs Act, 1962 do not stand passed by the lower authorities till date.
6. It is contended by the learned advocate that there is no need for awaiting the decision on their application filed under Section 149 and 154 inasmuch as the same were filed as an abundant precaution. Inasmuch as there was no lis between the appellant and the Revenue, their refund claims are required to be scrutinised even without any challenge to the Bill of Entry, in terms of law declared by the Honble Delhi High Court in the case of Aman Medical Products Ltd. vs. CC, Delhi [2010 (250) ELT 30(Del)]. As such, he submits that appeal be allowed and the lower authorities be directed to grant the refund immediately.
7. Countering the above argument, learned DR appearing for the Revenue, submits that lower authorities have not scrutinised and verified the refund claims inasmuch as the same were rejected on preliminary ground of non-production of reassessed Bill of Entry.
8. We really do not appreciate the conduct of lower authorities. On one hand they are sitting over the applications filed by the applicant for correction of Bill of Entry and on the other hand, they are rejecting the refund claim on the sole ground that reassessed Bill of Entries have not been produced by them. Reassessment was required to be done by the proper officer and is admittedly not in the hands of assessee. Revenue cannot be allowed to have the benefit of its own lapses. If the original adjudicating authority was of the view that reassessed Bill of Entry is required for grant of refund claim, the same was required to be decided first and then the order was required to be passed on the refund application.
9. Having expressed our annoyance on the above attitude of lower authority, we find favour with the appellants contention that inasmuch as there was no lis involved on any legal point, between the appellant and the Revenue, the refund claim are required to be adjudicated independently. The Honble Delhi High Court in Aman Medical Products Ltd. cited supra, has examined the said issue in the light of law declared by the Delhi High Court in the case of Flock (India) Pvt. Ltd. referred supra as also in the case of Priya Blue Industries [2004 (172) ELT 145 (SC) ] and has come to conclusion that where there is no dispute about any legal issue or where the duty stand paid on account of ignorance of exemption notification, refund claims cannot be rejected on the sole ground that assessments were not put to challenge in appeal. The Tribunal in the case of Commissioner of Central Excise, New Delhi vs. Prima Telecom Ltd. [2011 (266) ELT 386 (Tri-Del)] has held that duty paid on higher value in the invoice as compared to the rate mentioned in the purchase order and foreign supplier apologised for the said mistake, the same has to be held as clerical mistake and in the absence of any lis between the appellant and the importer, for the challenge to assessment of import, refund claim has to be sanctioned.
10. As such, in view of the foregoing discussion, we find that the appellants are entitled to the refund claim of duty paid in excess than what was required to be paid by them. However, we note that both the authorities below have not verified and examined the documents submitted by the appellants, and as such, their views on the correction of the same are not available, we deem it fit to set aside the impugned orders and remand the matter to original adjudicating authority for verification of the appellants refund claim and to pass appropriate orders thereof. We expect the original adjudicating authority to pass the orders within a period of 2 months from today.
11. The appeal is disposed of in the above terms.
(Pronounced in the open court)
( Archana Wadhwa ) Member(Judicial)
( Mathew John )
Member(Technical)
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