Custom, Excise & Service Tax Tribunal
M/S Johnson Controls (India) Pvt. Ltd vs Commissioner Of Customs, Air Cargo ... on 12 December, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. C/608/03 (Arising out of Order-in-Appeal No. 201/2003 AP MISC (Air) dated 24.4.2003 passed by the Commissioner of Customs (Appeals), CSI Airport, Mumbai). For approval and signature: Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri Anil Choudhary, 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 : Yes 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 Johnson Controls (India) Pvt. Ltd. Appellant Vs. Commissioner of Customs, Air Cargo Complex, Mumbai Respondent Appearance: None for Appellant Shri M.S. Reddy, Dy. Commissioner (AR) for Respondent CORAM: SHRI P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL) SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 12.12.2013 Date of Decision: 12.12.2013 ORDER NO. Per: P.R. Chandrasekharan
The appeal is directed against Order-in-Appeal No. 201/2003 AP MISC (Air) dated 24.4.2003 passed by the Commissioner of Customs (Appeals), CSI Airport, Mumbai.
2. Vide impugned order, the learned lower appellate authority has rejected the refund claim of M/s Johnson Controls (India) Pvt. Ltd. on the ground that the appellant did not challenge the order of assessment and hence he is not eligible for refund.
3. None appeared for the appellant.
4. The learned Dy. Commissioner (AR) appearing for the Revenue submits that this is a case where the appellant filed Bill of Entry and in the Bill of Entry, the currency was indicated in US $ and accordingly the duty assessment was done. Subsequently, the importer realized that invoiced currency is only in Singapore $ and accordingly he filed a refund claim for the duty paid in excess amounting to Rs.1,18,545/-. The refund claim was rejected by the adjudicating authority on the ground of unjust enrichment. The lower appellate authority has rejected the claim on account of non-challenging the order of assessment. He reiterates the findings of the lower authorities.
5. We have gone through the records and we find that though the appellant had wrongly declared the currency as US $ in the Bill of Entry, in the import invoice the currency is declared as Singapore $. In customs matters, the assessment is done by the Appraising Officer. Therefore, it is an error committed by the Appraising Officer in not taking the correct currency, even though the appellant mis-declared the currency as US $ in the Bill of Entry. However, this mistake should have been noticed and corrected by the Assessing Officer himself. There is no dispute either about the classification of the goods or about the rate of duty. Thus, it is not a case which comes under the category of assessment required to be challenged. It is an error committed apparently on face of the record. Thus, there is no ground for rejecting the refund claim on account of non-challenging the order of assessment.
6. In view of the facts and circumstances of the case, we are of the view that the matter has to go back to the adjudicating authority and the appellant should be given an opportunity to prove that the refund is not barred by unjust enrichment. Accordingly, we remand the matter to the adjudicating authority and the appellant is directed to submit all the evidences in support of his claim that the refund is not hit by bar of unjust enrichment before the adjudicating authority within a period of three months from the date of receipt of this order and thereafter, the adjudicating authority shall pass a fresh order in accordance with law.
7. Thus, the appeal is allowed by way of remand.
(Dictated and pronounced in Court)
(Anil Choudhary) (P.R. Chandrasekharan)
Member (Judicial) Member (Technical)
Sinha
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