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TMI Blog2006 (5) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration are that the appellant imported consignments of shots and grits and filed Bills of Entries for home clearance, which were assessed as requested by the appellant. Subsequently a refund claim was filed by the appellant stating that they had paid excess duty. The said refund claim was scrutinized by the lower authorities and allowed. Revenue preferred appeals against the said orders, which were allowed by the appellate authority on the ground that once the Bill of Entries has been finally assessed then the route of the refund claim cannot be taken for the reassessment of the Bill of Entries. Hence these appeals by the appellants. 3. The learned advocate appearing for the appellant submits that the order-in-appeal passed is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC, Mumbai - 2005 (181) E.L.T. 71 (Tri.-Del.) 4. The learned DR on other hand would submit that the review order passed by the Commissioner is as per the provisions of the Customs Act. It is also submitted that the order for filing the appeal by the Commissioner has all the requirements under the law. It is also submitted that the provisions of Section 154 cannot be invoked in these cases as the said provisions can be applicable only in the case of accidental omission and arithmetical errors, while in this case the appellant has not claimed the benefit of the notification when bill of entry was filed for clearances of the goods for home consumption. 5. Considered the submissions made by both sides and perused the records. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istant Commissioner of Customs (Refund), Custom House, Kandla which is not proper, legal and correct on the following ground :- 1. The B/E No. F-9780, dated 27-5-2003 was assessed finally by the assessing officer. The order of assessment was appealable order. However, M/s. Saw Pipes Ltd. did not choose to exercise the statutory right of filing an appeal but filed the refund claim. The sanction of the refund claim, when the correctness of the appealable order was not challenged by the party is not legal, proper and correct Therefore, I, C.M. Mehra, Commissioner of Customs, Custom House, Kandla hereby direct, Shri N.K. Sharma, Deputy Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on cannot missed and discard the said order as non est. 7. The objection raised by the appellant on this point is a non-starter and hence is unsustainable. 8. Having come to a finding that the appeal filed before the appellate authority being a correct one, I take up the second point of the appellant i.e. the order-in-original is an order passed under Section 154 of the Customs Act, 1962. The provisions of Section 154 read as under : "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 correct by the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., dtd. 1-3-2002 as amended by Noti. No. 54/2002-Cus., dt. 22-5-2002 and Notification No. 26/2003, dtd. 1-3-2003). The party has submitted and confessed that through oversight & erroneously they have paid the duty @ 40% basic. The difference of duty to be refunded is worked out as under:" (emphasis supplied) 10. It can be seen that the appellant has himself admitted that they have paid the excess duty through oversight and erroneously. If that being the case the appellant should have challenged the assessment of the Bill of Entry instead of taking a short cut of filing the refund. The assessment of the Bill of Entries being unchallenged, have attained finality. Adopting the route of refund claim, they cannot seek to reopen the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to accept this submission. Just such a contention has been negatived by this Court in Flock (India)'s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order." 11. In view of the facts and circumstances as mentioned above the appellant appeal fails on me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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