Decided on January 02,2015

Minex Metallurgical Co. Pvt. Ltd. Appellant
COMMR. OF C. EX. Respondents

Referred Judgements :-



P.R. Chandrasekharan, Member (T) - (1.)THE appeal is directed against Order -in -Appeal No. PVR/281/NGP/APPL/2012, dated 31 -12 -2012 passed by Commissioner of Central Excise & Customs (Appeals), Nagpur. Vide the impugned order, the learned lower appellate authority has set aside the order of the assessing officer dated 24 -1 -2012 granting refund of excess duty paid by the importer, M/s. Minex Metallurgical Co. Pvt. Ltd., the appellant herein, on the ground that without challenging the assessment, refund could not have been sanctioned in view of the Apex Court's decision in the case of Priya Blue Industries Ltd. - : 2004 (172) E.L.T. 145 (S.C.). Aggrieved of the same, the appellant is before us. The learned counsel for the appellant submits that the appellant imported "Ferro Titanium Cored Wire" vide bill of entry No. 2650, dated 7 -9 -2011. In the bill of entry, the transaction value was declared as Euro 12786.50 instead of US $ 12786.50. The appellant realized the mistake immediately after payment of duty and clearance of the goods and therefore, they filed a refund claim towards the excess payment of duty made. He also produced the copy of the purchase order No. 51/00381031/00 dated 4 -7 -2011 wherein the currency was correctly indicated as US $ and also the Sales Confirmation Order dated 30 -6 -2011 which also shows the currency as US $. He also obtained a letter from the foreign supplier indicating that the transaction was in US $ whereas the invoice issued, the same was wrongly mentioned as Euro. He also produced a letter from the banker M/s. Standard Chartered Bank, Mumbai wherein the bank has confirmed that the amount, paid to the foreign supplier was US $ 12786 In the light of these evidences, the adjudicating authority was convinced that there was a genuine error committed by the importer, the refund claim was examined from the unjust enrichment angle also and it was found that the appellant had not passed on duty incidence to anybody else. Accordingly, he sanctioned refund claim of the excess duty paid amounting to Rs. 5,59,861/ - to the appellant importer. Revenue was aggrieved of this order and they filed an appeal before the lower appellate authority. The lower appellate authority held that if the goods have been cleared on assessment on payment of duty, without challenging the assessment, the appellant could not have been granted any refund as held by the Hon'ble Apex Court in the case of Priya Blue Industries Ltd. v. CC (Preventive) - : 2004 (172) E.L.T. 145 (S.C.) wherein it was held that refund claim contrary to assessment order is not maintainable without order of assessment having been modified in appeal or reviewed under Section 28 of Customs Act, 1962, and the original order would stand and therefore, grant of refund is incorrect in law. Hence, the appeal.
(2.)THE learned counsel for the appellant submits that the Priya Blue Industries Ltd. case deals with a situation where the assessment is completed by the competent officer and unless the assessment is reviewed under Section 28, the question of grant of refund claim would not arise. In the present case, the issue involved relates to a mistake by wrongly declaring the foreign currency. This mistake has been rectified in the order of the adjudicating authority and consequently, refund of excess duty paid has been sanctioned. The order of the adjudicating authority itself is a review of the earlier assessment and it is consequent upon such review, refund has been granted and therefore, the ratio of Priya Blue Industries Ltd. case would not apply. He also relies on the decision of this Tribunal in the case of Secure Meters Ltd. v. CC, New Delhi -, 2013 -TIOL -984 -CESTAT -DEL which also involved an identical matter wherein wrong currency was mentioned in the bill of entry and the refund claim was rejected on the same ground as mentioned above. This Tribunal held that the application of wrong exchange rate is a clerical error and on account of such clerical error, a higher amount of duty has been paid, reassessment is not required before filing of the refund claim as the clerical error can be corrected under Section 154 of the Customs Act and accordingly, refund was allowed. The same view was taken by this Tribunal earlier in the cases of CC, New Delhi v. Prima Telecom Ltd. - : 2011 (266) E.L.T. 386 (Tri. - Del), CC (Import & General), New Delhi v. Biomerieux India Pvt. Ltd. - : 2014 (299) E.L.T. 487 (Tri. - Del.) and a few other decisions. Accordingly, he pleads for setting aside the impugned order and restoring the order of the adjudicating authority sanctioning the refund. The learned Additional Commissioner (AR) appearing for the Revenue reiterates the findings of the lower authorities. It is his contention that the mistake should have been corrected within 15 days of the assessment order which has not been done in the present case and therefore, the order of the lower appellate authority is sustainable in law. I have carefully considered the submissions made by both the sides.
3.1 It is an admitted fact that the appellant committed an error while declaring the currency as Euro instead of US $ in the bill of entry. The appellant also submitted evidences by way of copy of purchase orders, letter from foreign supplier, letter from the banker evidencing that the correct currency is US $ and not Euro and therefore, the declaration made in the bill of entry was a mistake. The adjudicating authority on the strength of the documents placed by the appellant, reassessed the duty liability and after satisfying that there is no unjust enrichment involved, sanctioned the excess duty paid as refund. The refund was sanctioned after determining the correct duty liability, which would imply that the adjudicating authority has reassessed the correct liability and consequential refund of the excess duty paid has been sanctioned.

3.2 As regards the finding of the lower appellate authority that since the assessment has not been challenged, the refund could not have been sanctioned, relying on the Priya Blue decision, I observe that the ratio of said decision is not applicable to the facts of the case herein. The Priya Blue case did not deal with any clerical mistake or error committed while filing the import documents. In the present case, there is no dispute about the classification or rate of duty applicable. It is a pure and simple mistake of declaring a wrong currency which resulted in payment of excess duty which has been rectified by the adjudicating authority. Therefore, the question of applying the ratio of Priya Blue case does not arise at all. On the contrary, in a large number of decisions cited by the counsel for the appellant, this Tribunal has held that in case excess duty has been paid on account of clerical error, refund is admissible. Following the ratio of these decisions, I hold that the appellant is rightly entitled to the refund of excess duty paid. Accordingly I set aside the impugned order and allow the appeal and restore the order of the adjudicating authority dated 24 -1 -2012 granting refund of excess duty paid by the appellant. The learned counsel mentions that in pursuance of the lower appellate authority's order, the refund sanctioned to the appellant has been paid back. Inasmuch as the appellant is rightly entitled to this refund, the same shall be granted to him immediately on receipt of this order.

(Dictated in Court)


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