INDIAN OIL CORPORATION LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, CUSTOMS (ADJUDICATION)
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
INDIAN OIL CORPORATION LTD.
Commissioner Of Central Excise, Customs (Adjudication)
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H.K. Thakur, J. -
(1.)THIS appeal has been filed by the appellant against OIA NO. PJ/628/ VDR -II/2012 -2013 dated 28.03.2013 under which the first appellate authority has rejected the appeal of the appellant as not maintainable.
(2.)SH . Willingdon Christian (Advocate) appearing on behalf of the appellant argued that as per a prevailing practice in the import of oil the sludge in the on shore tanks was not charged to duty on the basis of test report of the sludge samples. He made the Bench go through the procedure adopted in this regard. That several such Ex Bond bills of entry were filed & provisional assessment finalized as per letter F. NO. VIII/3 -1/PA/IOCL/06 -07/2602 dated 25.07.2007. That appellant Vide Letter dated 13.07.2007 wrote to the department that Ex Bond B/E No. 181 for 613.675 MT was sludge and not chargeable to duty but was mistakenly charged to duty of Rs. 8,89,179/ -. That this was followed by reminders dated 13.07.2007, 28.11.2007, 22.12.2008, 12.03.2009, 28.10.2009, 25.03.2010, 28.09.2010, 20.12.2010 & 24.01.2011 & 08.04.2011 to rectify the error under Section 154 of the Customs Act 1962 Revenue Vide Letter F. No. V. Misc (30) 143/Recti.10cl/11 dated 02/06/2011 wrote to the appellant that there is no need of rectification and that appellant should have filed the appeal, if aggrieved, against the order dt 25.07.2007 under which assessments were finalized.
2.1. Learned Advocate made the bench go through the following case laws to drive home the point that a bonafied error on the part of an officer can be rectified under Section 154 of the Customs Act, 1962.
"(ii) Mahindra & Mahindra Ltd. v. Commr. Of Cus. (Import), Mumbai, 2008 (230) E.L.T. 425 (Tri. Mumbai).
(iii) Bennet Coleman & Co. Ltd. v. Commissioner of Customs, Bangalore 2008 : (232) E.L.T. 367 (Tri. -Bang.)
(iv) Commissioner of Customs, Guntur v. Sameera Trading Company, 2011(264) E.L.T. 578 (Tri. Bang.)"
Sh. Alok Srivastava (AR) appearing on behalf of the Revenue strongly defended the orders passed by the first appellate authority by arguing that appellant should have filed appeal against the orders of finalization of provisional assessment.
(3.)HEARD both sides and perused the case records. The issue involved is whether an error committed by the Adjudicating Authority in his order dated 25.05.2007 could have been rectified as per the provisions of Section 154 of the Customs Act, 1962. The said section is reproduced below.
"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 accidental 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."
4.1. As soon as the error was noticed by the appellant the same was requested for rectification within two months of the order dt 25.05.2007. Appellant gave repeated reminders and only after nearly four years department replied that there is no need for rectification and appellant should have filed appeal against the finalization order dated 25.07.2007. It is observed that Revenue responded after nearly four years as the same observation could have been given to the appellant as early as 13.07.2007 when the appellant asked for rectification of order dated 25.05.2007.
4.2 It is also observed from the language of Section 154 of the Customs Act 1952 that any clerical or arithmetical mistake in any decision or order or any error arising from any accidental slip or commission may be rectified by the appropriate officer. This section has been interpreted by various judicial pronouncements relied upon by the appellant. In the case of Bennet Coleman & Co. Ltd. v. CC, Bangalore (Supra) it was held that non - consideration of an exemption notification is a situation which could be rectified by the assessing officers under Section 154 of the Customs Act 1962. Para 7.3 of this order is reproduced below: - -
"The Hon'ble Apex Court, in the case of Shree Hari Chemicals v. UOI & Anr. - : 2007 (207) E.L.T. 513 (T) : 2007 (5) S.T.R. 59 (T) of the same Tribunal wherein the ratio of the Apex Court's judgment in the cases of Flock (India) Ltd. and Priya Blue have been distinguished. In these circumstances, we are of the considered view that the omission can be corrected under Section 154 of the Customs Act, 1962. Therefore, the appellant is rightly entitled for the refund of the amount, which was collected without extending the benefit of an unconditional exemption notification. For the fault of the assessing officer, if the importer is compelled to pay huge revenue, it would definitely amount to miscarriage of justice. Hence, we allow the appeal."
4.3. In view of the above judicial pronouncements charging of duty on sludge in order dated 25.05.2007, which was not otherwise payable as per the prevailing practice, is definitely a case of rectification within the language of provisions contained in Section 154 of the Customs Act 1962. Lower authorities were not justified in saying that such a mistake/ error on the part of adjudicating authority can not be rectified as per the provision of Section 154 of the Customs Act, 1962. Accordingly, appeal filed by the appellant is required to be allowed for carrying out suitable rectification in the order dated 25.05.2007.
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