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2014 (9) TMI 621 - AT - CustomsDenial of refund claim - Bill of Entry was assessed and duty was paid accordingly. - Later on, the appellant realised that they are entitled for exemption under Notification No. 11/97, they were not required to pay duty, they filed refund claim - difference of opinion - Majority decision - Held that:- There was an exemption notification covering the said medicines which was neither brought to the notice of the assessing officer nor claimed by the appellant and the assessing officer assessed the duty without extending the benefit of the said exemption notification. The appellant did not challenge the assessment order nor applied for any reassessment and filed the refund claim without challenging the assessment order. Accidental slip or omission in assessing bill of entry - Held that:- Valuation, classification and rate of duty are very important aspects of assessment and the decision taken during assessment proceedings cannot be considered as accidental slip or omission on the part of the proper officer. Accidental slip or omission will be taking British Pound instead of US$ or like. Mistake in the digits relating to value or rate of duty. In fact, while filing the Bill of Entry invariably the importer or the CHA indicates the value as per the Customs Act, indicates the tariff heading as also the exemptioin notification. The proper officer scrutinizes and checks the claim and thereafter assess the Bill of Entry. The decisioni of the Hon’ble Single Member in the case of G.S. Metalica [2007 (8) TMI 507 - CESTAT, MUMBAI] is, therefore, per incuriam and cannot be applied in other cases. In the case of Shri Hari Chemicals Export Ltd. [2005 (12) TMI 95 - SUPREME COURT OF INDIA], the issue before the Hon’ble Supreme Court was whether merely a wrong mention of statutory provisions can lead to denial of benefit. - in the said case, there was a mistake in mentioning the Rule 56A and Rule 57A and in it is in those circumstances, the Hon’ble Supreme Court has taken the said view. In the present case, there is no such mistake. Another case of quoted is that of Bennet Coleman & Co. Ltd. (2008 (7) TMI 204 - CESTAT BANGLORE). In the said case, there was introduction of additional Duty with effect from 1.3.2006 and during the initial period, there was some confusion regarding applicability of SAD on certain items and the appellant paid the additional duty but immediately (on 10.4.2006) applied for the refund of the same and in those circumstances this tribunal distinguished the case from that of Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA). Sec. 154 of the Customs Act cannot be invoked in the present situation where the assessment was made without extending the benefit of exemption notification and same cannot be called arithmetical, clerical or error arising from accidental slip or omission. - Decided against assessee.
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