Custom, Excise & Service Tax Tribunal
Cc, Faridabad vs M/S.Maharani Paints (I) Pvt.Ltd on 24 February, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISON BENCH
Customs Appeals No.631-633 of 2006
(Arising out of Order-in-Appeal No.49/Cus/Appl/DLH-IV/2006 dated 08.9.2006 by the CCE (A), Faridabad)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr.Mathew John, 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 Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
CC, Faridabad Appellants
Vs.
M/s.Maharani Paints (I) Pvt.Ltd. Respondent
Present for the Appellant: Shri B.L.Soni, SDR
Present for the Respondent: Shri G.k.Sarkar, Advocate
Coram: Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr.Mathew John, Member (Technical)
Date of Hearing/Decision: 24.02.2011
ORDER NO._______________
PER: ASHOK JINDAL
These appeals are filed by the Revenue against the impugned order wherein the refund applications of the assessee for excess duty paid by them were allowed.
2. The brief facts of the case are that the respondents imported saturated carboxylated polyester resins for the manufacture of their final product from Thailand. The effective rate of customs duty on the goods imported has been fixed at 25% of the effective rate of customs duty which was 25% during the material time under Notification No.85/2004-Cus dated 31.08.2004 amended by Notification No.79/2005-Cus dated 1.09.2005. The effective rate of customs duty was fixed 6.25% at the time of importation of goods as per above notification. The respondents filed bills of entry accordingly. While assessing the bills of entry, the Deputy Commissioner of Customs assessed the goods at the rate of 11.25%. As the respondents were in urgent need of the goods, they cleared the goods and paid excess duty and thereafter they filed refund claim of the excess duty charged in the bills of entry. The refund claim was rejected on the ground that the assessment of bills of entry has not been challenged, hence relying upon the decision of the Apex Court in the case Flock India reported in 2000 (120) ELT 285 (SC) and in the case of M/s.Priya Blue Industries Ltd. reported in 2004 (172) ELT 145 (SC), refund claims were not maintainable without challenge of the bills of entry. Aggrieved by the said order, the respondents have filed appeal before the lower appellate authority who allowed their refund claim by setting aside the order of rejection of refund claim by the adjudicating authority. Therefore the Revenue is in appeal before us.
3. Learned SDR submitted that it is settled law that when the assessment has been finalized, the refund claim is not maintainable without challenging the assessment as held by the Apex Court in the case of M/s.Priya Blue Industries Ltd. reported in 2004 (172) ELT 145 (SC), and accordingly the impugned order be set aside.
4. On the other hand, learned Advocate for the respondents submitted that the respondents have filed their bills of entry by taking the benefit of Notification No.85/2004-Cus dated 31.08.2004 read with Notification No.79/2005-Cus dated 1.09.2005. As per the said notification, the rate of customs duty was 6.25%, which they have correctly mentioned in their bills of entry but due to some clerical error, the adjudicating authority charged higher rate of duty without assigning any reason etc. and it is admitted case of manipulated bills of entry and the respondents are in urgent need they have cleared the goods immediately on paying higher duty and the error committed by the adjudicating authority is rectifiable under Section 154 of the Customs Act, 1962, Hence, the assessment of bills of entry need not be challenged in the facts of the present case.
6. Heard and considered.
7. We have gone through the submissions made before us by both the sides and perused the records also. While assessing the bills of entry, the assessment was done on manually basis and without assigning any reason for correction of rate of customs duty was made by the adjudicating authority by recording wrong rate of customs duty. In fact the adjudicating authority has failed to apply the correct rate of customs duty. Therefore, error committed by the adjudicating authority is a clerical error and the same can be rectified under Section 154 of the Customs Act, 1962 instead of applying the provisions of Section 27 (1) of the Customs Act, 1962. As the adjudicating authority failed to apply the correct rate of customs duty while assessing the bills of entry, hence the provisions of Section 27(1) of the Customs Act, 1962 are not applicable to the facts of the present case. Accordingly the assessment of bills of entry is not required to be challenged as the same are rectifiable under section 154 of the Customs Act, 1962. Accordingly, the case law cited by the learned SDR in the case Flock India and M/s.Priya Blue Industries Ltd. are not applicable to the facts of the present case. Hence, we do not find any infirmity in the impugned order and the same is upheld. The appeals filed by the Revenue are rejected.
(pronounced in the open court) (ASHOK JINDAL) MEMEBR (JUDICIAL) (MATHEW JOHN) MEMEBR (TECHNICAL) mk 1 4