TMI Blog2010 (5) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... sing officer to reassess the Bill of Entry under Section 17(4) of the Act after allowing the assessee to amend the Bill of Entry under Section 149 of the Act - No merit in the appeal filed by the Revenue and reject the same. - C/575/2009 - 830/2010 - Dated:- 19-5-2010 - S/Shri M.V. Ravindran, P. Karthikeyan, JJ. REPRESENTED BY : Shri U. Raja Ram, JDR, for the Appellant. Shri Anil Kumar, Advocate, for the Respondent. [Order per : P. Karthikeyan, Member (T).]. - This is an appeal filed by Revenue. Vide the impugned order, the Commissioner (Appeals) set aside the order of the Assistant Commissioner of Central Excise, Nellore and allowed the refund claim filed by the respondents for an amount of Rs. 29,52,968/- being excess export duty paid by it. 2. The appeal raises the following grounds : (i) the respondents had paid export duty on the FOB value of the consignments without registering any protest. Therefore they cannot claim that they were aggrieved by the assessments treating the FOB value as transaction value. (ii) In the case of Collector of Central Excise, Kanpur v. Flock India Pvt. Ltd. [2000 (120) E.L.T. 285 (S.C.)] the Apex Court held that if the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue case. In this connection, the assessee s contention that filing the refund claim itself was a challenge to the assessment order was not tenable in view of judgment of the Apex Court in the case of Flock India Pvt. Ltd. (supra). 3. We have heard both sides. 4. We have carefully perused the case records and considered the rival submissions. The facts of the case are that the respondents, M/s. Sameera Trading Company have exported 53,900 MTs of Iron Ore fines under shipping bill No. 64/08-09 dared 9-8-08. They paid export duty of Rs. 3,74,43,899/- on 11-8-08. Further, the exporter paid an additional amount of Rs. 2,08,408/- following chemical test of the sample for determining the Fe content and moisture content in the Ore. The Assistant Commissioner had assessed the duty liability on the export consignments taking FOB value as transaction value material for payment of duty. On 10-11-08, CBEC issued a Circular indicating that a policy decision had been taken that till 31-12-08, the existing practice of computation of export duty and cess by taking the FOB value as cum-duty price may be continued and directed to finalize all the pending cases accordingly. The respondents accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the legal position in this regard and observed that the error could be corrected invoking provisions of Section 154 of the Act and by reassessing the shipping bills under Section 17(4) of the Act. 6.1 We find that the Apex Court observed as follows in Flock India Pvt. Ltd. case (supra) : Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. The above judgment was concerned with the provisions relating to refund under the Central Excise Act. The ratio applies to refund claims under the Customs Act as well. However, Section 27 dealing with refund, etc. does not override the provisions of other Sections of the Act. 6.2 Section 154 of the Act reads as under : Correction of clerical errors, etc. - Clerical or arithmetical mistakes in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation under Section 154 may not be legally correct. I, therefore, consider it necessary to remand the matter to the adjudicating authority for fresh adjudication and to pass a fresh speaking order in the matter after taking into consideration the provision of Section 154 of the Customs Act, 1952, particularly when the provisions of this section have not been considered in the aforementioned decisions of the Hon ble Supreme Court. In another case of rejection of claim for refund of excess duty paid by the appellants, in M/s. Aditya Birla Nuvo Ltd. [2008 (222) E.L.T. 249 (Tri. Bang.) = 2009 (15) S.T.R. 752 (Tri)] case, following the ratio of the judgments of the Apex Court in Flock India Pvt. Ltd. (supra) and Priya Blue Industries Ltd (supra), the Tribunal held that the appellants were entitled to claim reassessment in terms of their refund application. The appeal was allowed by remand to the original authority. The Tribunal had followed the decisions in the case of Karnataka Power Corporation Ltd. v. Commissioner [2002 (143) E.L.T. 482 (S.C.)] and Jindal Vijayanagar Steels Ltd. v. Commissioner [2006 (206) E.L.T. 529 (Tribunal) = 2008 (11) S.T.R.108 (Tribunal)]. We also note that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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