TMI Blog2006 (7) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... refund can not be denied on the presumptuous ground that the appellant would pass on the same later on . Section 27 of the Act does not provide for denial of refund on any such hypothetical conclusions. The impugned order of the Commissioner (Appeals) is to be set aside and the respondent Customs authorities directed to refund the excess duty of Rs. 94,99,376/- at the earliest - Appeal allowed. - SHRI S.S. SEKHON, MEMBER (T) AND KRISHNA KUMAR, MEMBER (J) Shri Samir Chakravorty, for the Appellant. Dr. I. Mariana, JDR, for the Respondent. ORDER [Order per : S.S. Sekhon, Member (T)]. - The present appeal is against an Order passed by the Commissioner of Customs (Appeals), Kolkata (hereinafter referred to as the Commissioner (Appeals) whereby he confirmed the order dated 7th January, 2003 of Assistant Commissioner of Customs for Appraising Refund (hereinafter referred to as the Assistant Commissioner ) rejecting the appellant s application for refund of excess Customs Duty paid amounting to Rs. 94,99,736/- on goods imported in March, 2002. 1.2 The appellant is engaged in the manufacture of Steel at its Jamshedpur factory. Somewhere, in March-2002, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id thereon and were/are kept pending as stores in transit and are thus not charged to Profit and Loss Account. The said goods also could not be removed from the stores as the duty actually paid was found to have exceeded, the value limit earmarked for the duty level on the SAP (computerised transaction). 1.5 On scrutiny of the import documents and check mades, it was observed by the appellants that due to a mistake in the Customs EDI System Recording, there was an error in the subject Bill of Entry in respect of the currency , instead of Swedish Kroner as per invoice, Swiss franc had been printed with the result that the total assessable value was shown as Rs. 2,23,00,150.78 instead of the correct value of Rs. 36,15,256.77, as was required to be worked out on the basis of conversion of Swedish Kroner into Indian Rupee. There was thus an excess levy and realisation of duty to the extent Rs. 94,99,376.00 on 21-3-02. 1.6 Consequently, on 14-8-2002, an application was filed by them, with the Deputy Commissioner of Customs, Group 5A, Kolkata seeking refund of amount of duty of Rs. 94,99,376.00 paid in excess along with all relevant documents. The Assistant Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant that refund cannot be given unless the assessment order on the Bill of Entry is set aside by the appellate authority and that in this case no appeal had been filed and he asked for clarification from the appellant. A personal hearing was granted by the Assistant Commissioner on 31st December, 2002 and availed. As regards unjust enrichment the appellant explained that the question of passing on the incidence of the excess duty paid on the said goods did not arise since the goods had not been taken into use and was still lying in store. In this connection, the appellant referred to the different records/documents already submitted by it, as aforesaid. However, they were also agreeable to execute an indemnity bond. However, by Order (Original) No. S107-17/2002-ARS, dated 7-1-2003 the Assistant Commissioner of Customs, rejecting the refund claim. 1.8 Aggrieved by the said Order, they preferred an appeal before the Commissioner (Appeals). On 13th October, 2003, they received Order-in-appeal No. KOL/CUS/95/CKP/03, dated 18th September, 2003 passed by the Commissioner (Appeals) rejecting the appeal after Observing : (i) The issue in the present appeal relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned above, the refund claim of the appellant does not merit any consideration. Though there are a few decisions of Hon ble Tribunal in favour of the appellant, in view of the categorical decision of Constitutional Bench of Hon ble Apex Court in the case of M/s. Mafatlal Industries Ltd. [1997 (89) E.L.T. 247 (S.C.)] refund of duty cannot be claimed, unless the assessment order is set aside according to law. The decision of Constitutional Bench of Hon ble Apex Court in the case of M/s. Mafatlal Industries (Para No. 70) as cited above, shall govern the present issue of admissibility of refund. In other words, since the assessment in the Bill of Entry had not been appealed against/set aside, no question of refund/consequential relief would arise in the matter. In the case reported in 2002 (139) E.L.T. 684 (Tri.), Hon ble Tribunal held that the r Commissioner (Appeals) had no jurisdiction to upset the original assessment which was not challenged under a regular appeal, while considering an application for refund. The instruction issued by C.B.E.C. dated 11-9-2001 (Manual of Instructions/Chapter 3/Para 17) also laid down the requirement of appeal against an adverse assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, had not been passed on to the buyer of the final product. That the excess duty incidence paid on the impugned goods had not been taken into account in the costing/price structure of the final products sold during the relevant period, is not corroborated by any evidence on record. Since the appellant failed to produce any documentary evidence to prove that the duty incidence under claim was not passed on to the buyer of goods and the presumption under Section 28D of the Act being that the appellant had passed on the duty incidence to the buyers, the present refund claim shall be hit by the bar of unjust enrichment. Hence, even presuming that the appellant may have a case of refund otherwise, the said refund claim would be barred by the principle of unjust enrichment. Thus, both on the question of merit as well as principle of unjust enrichment, the, claim of the appellant is not legally sustainable/maintainable. 1.9 Being aggrieved the present appeal has been filed. 2.1 The Customs Manual of Instructions has been issued on 11th September, 2001 by the Central Board of Excise Customs (in short the Board ). In Chapter 15 of the said Manual it has been clarified that in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order even according to the Commissioner (Appeals) and, as the case was, there was admittedly a slip/clerical error in as much as the exchange value has been wrongly computed on account of conversion in wrong currency . Section 154 of the Act clearly provides that [as acknowledge by the Commissioner (Appeals) also] such clerical error/accidental slip or omission can be corrected at any time . In the premises the question of filing any appeal against the assessment order by the appellant in the present case, in any event, would not arise. The assessing authority can amend an order of assessment, as far as clerical slips/errors are concerned. The respondent Customs authorities, had the authority and consequently a duty, to correct the said admitted clerical error/accidental slip as soon as the same was brought to their notice irrespective of the status of an order of assessment on a Bill of Entry. On making of such correction under Section 154 of the Act, consequential return of amount of duty of customs would be available to an importer and would require to be made is the mandate of law as laid down. 2.3 (a) The Commissioner (Appeals) is to be found to have err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistant Commissioner dated 7th January, 2003, which was before the Commissioner (Appeals) wherein it could be seen head Discussions and Findings that nowhere the Assistant Commissioner alleges or states that the appellant had not submitted documentary evidence demonstrating non-passing of the duty amount claimed as refund in the present case. The following finding of the Assistant Commissioner and the reason because of which he had purported to deny the valid and legal refund claim of the appellant (at page 3 thereof). The claimant were alleged that they passed on incidence of duty to other persons. In this respect they stated that they have not taken the amount of claim in their profit and loss account therefore there is no question of passing on incidence to duty to any other person. In this regard I find that the assessee had submitted balance sheet for the year 2001-02 and duty was paid during this year as on 21-03-02. It is not understood why they have not taken the amount in their books of account under profit and loss account as they could have taken the correct amount in their expenditure account but they did not do so and it cannot be ruled out if the claim in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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