Per : Ashok Jindal
The appellant has filed this appeal against the denial of refund of excess amount paid by them at the time of assessment of their Bill of Entry due to clerical mistake.
2. The facts of the case are that the appellant filed a Bill of Entry on 19.02.2007 for clearance of cabinet parts of racks of server for electric control and paid duty on 20.02.2007. Thereafter, it was noticed that some error has been committed at their end as they have taken the price indicated in their invoice as per unit price, in fact it was the value of the whole goods purchased. Accordingly, revised invoice procured from one of the supplier and an application for re-assessment was filed in pursuing to their clerical mistake while calculating the amount payable at the time of filing the original Bill of Entry. Accordingly, re-assessment was done and actual duty payable was worked out to Rs.1,47,390/- on 7.6.07. Thereafter, the appellant filed a refund claim of the excess amount of Rs. 7,85,820/- which was rejected by the Asst. Commissioner on the ground that refund claim is filed beyond a period of six months from the date of payment of duty. The appellant filed an appeal before the Commissioner (Appeals) who also rejected the refund claim holding that 'In the instant case it appears that neither the duty appeared to have been paid under protest nor the refund arose due to any re-assessment ordered by any appellate authority. Also the bill of entry was not assessed provisionally at original stage. Hence it appears that order passed by the original authority is just and proper and will sustains the duty was paid on 20.02.2007 and the claim was filed on 12.10.2007 i.e. after six months.’ Aggrieved from the said order the appellant is before me.
3. The learned Advocate appearing on behalf of the appellant submitted that in this case there was a clerical mistake committed while filing the Bill of Entry. Considering the whole value of the goods as per unit of the parts, paid excess amount at the time of assessment of the Bill of Entry. As soon as, the appellant realised their error they procured the revised invoice from the foreign supplier and sought re-assessment of Bill of Entry and the same was done on 7.6.2007. Immediately thereafter on 12.10.2007 the appellant filed the refund claim within the prescribed time limit. He also submitted that provisions of Section 27 of the Customs Act, are not applicable to their case as their refund claim arising out of clerical mistake committed by the appellant which is covered under Section 154 of the Customs Act, 1962 and the refund arising from clerical mistake under Section 154 have no time bar limit. To support his contention he placed reliance on the following case laws:-
1. ABB Ltd. vs. Commissioner of Customs, Mumbai - 2005 (181) ELT 71 (Tri. Del.).
2. Keshari Steels vs. Collector of Customs, Bombay - 2000 (115) ELT 320 (Bom.)
3. Collector vs. Keshari Steels - 2000 (121) ELT A139 (S.C)
4. Symrise Pvt. Ltd. vs. Commissioner of Customs, Chennai - 2009 (248) ELT 418 (Tri. - Chennai).
5. Commissioner of Customs (Import) vs. Indian Farmers Fertiliser Co-op. Ltd. - 2009 (243) ELT 687 (Bom)
6. Commissioner of Customs (Import) Mumbai vs Nicolas Piramal India Ltd. - 2008 (225) ELT) 99 (Tri.-Mumbai).
7. M/s Sel Jegat Printers Pvt. Ltd. vs. Commissioner of Customs, Tuticorin - 2010-TIOL-1091-CESTAT-MAD.
4. On the other hand the learned DR submitted that it is a case whether the duty was paid by the appellant at the time of assessment of their Bill of Entry and they have filed the refund claim beyond the period of six months, the provisions of Section 27 of the Customs Act are squarely applicable in this case. This Tribunal has held in the case of Commissioner of Customs(I) Nhava Sheva vs. Arihant Metal and Alloys Inds. - 2009 (243) ELT 726 (Tri. Mum) holding that ‘the importer instead of filing refund claim only preferred an appeal against the order of the re-assessment and filed refund claim after the expiry of six months from the date of payment of duty as prescribed under Section 27 of the Customs Act, 1962’. He also relied on Brakes India Ltd. vs. Commissioner of Central Excise, Pondicherry - 2010 (251) ELT 557 (Tri. - Chennai).
5. Heard both sides.
6. On careful examination of the facts and submissions of both the sides, I find that it is a case where the appellant found that while filing the Bill of Entry they have misunderstood the whole value of the units as per piece which was not correct and on realising their mistake they asked for re-assessment of Bill of Entry and the same was done by the concerned officer. Thereafter, they filed a refund claim of the excess amount paid by them at the time of assessment of the Bill of Entry. Section 154 of the Customs Act which is reproduced as under:-
‘154. Correction of clerical errors etc. - Clerical or arithmetical mistake in any decision or order passed by the Central Government the Board or any officer of customs under this Act, or errors arising their from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board of such officer of customs or the successor in office of such officer, as the case may be.’
The clarification states that the clerical or arithmetical mistakes or error arising from any accidental slip or from omission, provisions of Section 154 are applicable and in Section 154 there is no bar of time limit. The case law relied on by the learned DR in the case of Arihant Metal and Alloys Inds. (supra) is somehow is not applicable to the fact of this case as in that case the Tribunal has held that the assessee has paid the duty voluntarily and also preferred an appeal against the order of re-assessment instead of filing refund claim but in this case the appellant has filed refund claim arising out of re-assessment of the Bill of Entry under Section 154 of the Customs Act. As held by this Tribunal in the case of Keshari Steels vs. Collector - 2000 (115) ELT 320 (Tri.) this Tribunal has held that refund arising out of correction of clerical or arithmetical error under Section 154 of the Customs Act, the limitation period provided under Section 27 is not applicable to such refund. The same view was confirmed by the Hon’ble apex court.
7. Accordingly, I find that in this case also the provisions of Section 27 of the Customs Act, will not apply. Hence, the refund claim of the excess amount paid by the appellant is not hit by bar of limitation of six months. As it is a case of a clerical error and the same has been rectified under Section 154, the appellant is entitled for the refund claim for the excess amount paid by them at the time of assessment of the Bill of Entry. Accordingly, the impugned order is set aside.
8. The appeal filed by the appellant is allowed with consequential relief.